text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE FALLS, SR., Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1803
    Opinion filed September 25, 1992.

      Kathryn Hall and Jerry B. Kurz, both of Hall & Kurz, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, and R. Darnell Granderson, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

After a bench trial, Willie Falls, Sr., was convicted of first degree murder and sentenced to imprisonment for 28 years. He contends he was not proved guilty beyond a reasonable doubt; he was denied effective assistance of counsel; the trial judge erred by failing to recuse himself; and the case should be remanded for a specific finding on whether the conviction should be reduced to second degree murder. We have determined that this case must be remanded for a new trial on the ground of ineffective assistance of counsel; but, to resolve any double jeopardy question, we must first consider the sufficiency of the evidence.

In 1978, Bessie Falls and the defendant divorced after more than 22 years of marriage. Although they never remarried, they reconciled some time during 1982 and began living together again in what had been their marital home at 10505 South Parnell in Chicago. Bessie became romantically involved with Charles Hudson, with whom she worked. In November 1988 the defendant heard a tape recording of Bessie telling her son, Willie Palls, Jr. (Willie), about some gift she had bought for Hudson. Bessie would see Hudson on Wednesdays, sometimes on Sundays. The defendant was having an affair with Janice Pickett that had gone on for about 16 years; he had fathered one of her children.

On May 11, 1989, Bessie’s body was discovered in her car parked in front of a vacant lot at 6130 South Kimbark in Chicago.

Willie testified that on April 29, 1989, he was at his parents’ residence shooting pool with his father. At that time the defendant told Willie, “[I] found out where your mother goes and how she goes and how she comes home, and when I catch her, I’m going to kill her ***.” Willie heard the defendant threaten his mother twice in the six-month period after the defendant learned of her affair. Willie told his mother to be careful after the defendant’s threat of April 29.

On cross-examination, Willie admitted that his father had threatened his mother “all the time.” He agreed that there was a “battle of two strong wills” going on between his mother and father and that his mother did what she wanted to when it came to the management of the household. He had also heard his mother threaten his father in the past.

Andrew Hooker, Bessie’s brother, testified that in early January 1989 the defendant told him that Bessie was having an affair and that when he caught her he would kill her. Hooker told Bessie about the threat and Bessie replied that she would not leave her house and that if the defendant did kill her to “put [her] away nice.”

Charles Hudson testified that he began having a romantic relationship with Bessie in May or June of 1988. On the night she was shot, she arrived at his apartment at 7:45 p.m. and they talked. She made him a salad and drank some Crown Royal. After they made love, she left at about 9:30 p.m. She was carrying a gun in the Crown Royal bag. He knew that Bessie carried a gun, and he had seen her gun under the driver’s seat 12 or 15 times when he rode in her car with her.

Detective Leo Wilkosz testified that he examined the crime scene on the morning of May 11. He noticed that the front passenger side window had been blown outward and that Bessie was dead and sitting in an upright position in the passenger seat. Her head was turned slightly to the left and her hands were in her lap. When he opened the driver’s side door he saw a brown paper bag under the front left comer of the driver’s seat. The butt of a gun was protruding from the bag. A woman’s purse was on the floor by Bessie’s feet. The purse was in an upright position as though it had been placed there; the purse appeared slightly open and did not contain any weapons.

On cross-examination, Wilkosz said that he could not tell what position the victim’s hands or body was in when she was shot. There were powder burns on Bessie’s face. In his opinion, these burns could have occurred if Bessie was shot during a struggle for the gun with the defendant.

Detective Alan Szudarski testified that he arrived at the defendant’s home at approximately 7 a.m. on the morning of May 11. The defendant told him that his wife had left the house at 7:45 the night before, that he had not seen her since and that he left the house at 8 p.m.

The following day Szudarski questioned the defendant’s girl friend, Janice Pickett. After talking to Pickett, Szudarski questioned the defendant after advising him of his Miranda rights. Szudarski told the defendant that Pickett contradicted his story about his whereabouts the night before; the defendant said that Pickett was lying. Szudarski questioned him about one-half hour later and the defendant gave the following statement.

He had been walking to Pickett’s house when his wife saw him walking at 103rd and Wentworth. She pulled up and asked where he was going. The defendant answered that he was going to his sister’s house. His wife slid over into the passenger side of the car and said, “You drive, and I’ll go with you.” They discussed their marital problems as they were driving. He drove to 6130 South Kimbark and parked the car.

The defendant brought up their respective affairs. He said that this “must have hit a nerve,” because Bessie reached for her purse. The defendant warned her not to reach for her purse because he knew she carried a gun; the defendant had taught her how to use a gun. She continued to reach for her purse so he drew his own gun. She reached for the gun, and he pulled back, took aim and fired three times. After shooting Bessie, he walked through a lot and disposed of the gun in a dumpster near 67th and Stony Island. He then took the bus to Pickett’s house and told her, “It’s all over now.”

It was established by stipulation that Bessie had been shot three times in the face. All three wounds showed evidence of stippling, indicating a close-firing range, and were on the left side of the victim’s head. One bullet exited out the right side of her head. Another bullet was recovered from her right jaw. The last bullet was diverted downward and was recovered from her fifth cervical vertebra.

After the State rested, E. Duke McNeil, one of the defendant’s attorneys, moved for a finding of not guilty at the close of the State’s case. He did not make any argument. The motion was denied, and McNeil said that he expected to finish the next day and that he would have a number of witnesses available at that time.

The next day the defense attorneys rested without putting on any witnesses. The judge found the defendant guilty after hearing closing argument. He said that there was no proof by a preponderance of the evidence that would support a finding of guilty of the charge of voluntary manslaughter. He also said that he did not believe the defendant’s account of the incident.

The defendant’s argument is that the State’s own evidence establishes that he fired in self-defense and that, at best from the State’s standpoint, the evidence shows that his belief that he was in danger of losing his life or suffering great bodily harm was unreasonable.

The issue of self-defense is one for the trier of fact. (People v. Daniel (1989), 191 Ill. App. 3d 837, 548 N.E.2d 354.) In a bench trial, the functions of the trial judge include determining the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. (People v. Colson (1989), 187 Ill. App. 3d 423, 543 N.E.2d 282.) In reviewing whether the evidence is sufficient to convict, the relevant question is “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” People v. Reid (1990), 136 Ill. 2d 27, 61, 554 N.E.2d 174, 189-90.

The evidence supports the judge’s finding. The multiple wounds to the face, the defendant’s previous threats to kill his wife, the defendant’s false statement to the police, his disposition of the weapon, his motive, and the fact that he was armed, all combined to establish proof beyond a reasonable doubt. See People v. Balfour (1986), 148 Ill. App. 3d 215, 498 N.E.2d 547.

We turn now to the defendant’s claim that he was denied effective assistance of counsel. After the defendant was indicted his bail was set at $60,000 and he posted a $6,000 bond. He retained the law firm of E. Duke McNeil & Associates. One of the members of that firm, Akim Gursel, filed a motion to quash the arrest and suppress evidence. He also filed motions to suppress statements. On the day the motion to quash the arrest was to be heard, the following occurred:

“GURSEL: Your honor, while Motions are set for today, I will respectfully ask the Court to entertain an oral Motion for Leave to Withdraw as Mr. Falls’ attorney for [the] following reasons:
Mr. Falls and I and Mr. McNeil cannot reach an understanding, first, as to how to proceed as to his case. And, secondly, Judge, that we have attempted to go along with Mr. Falls. And I informed Mr. Falls, I’m not the Public Defender, for professional reasons.
JUDGE: Well, Mr. Gursel, I understand that lawyers like to be paid, but unfortunately I can’t intervene on your behalf anymore than I would intervene on the Defendant’s behalf, if he thought you charged too much.
GURSEL: I understand that, Your Honor. I’m asking the court to appoint someone who can represent him. Because in all honesty, your Honor, I don’t feel at this point in my career, with a young child in private school and other indebtedness, that I can sit at counsel table and concentrate and give my best to Mr. Falls with him owing me money. It just couldn’t happen.
JUDGE: Well, Mr. Falls, let me say this to you: First of all, you chose to hire Mr. McNeil and Mr. Gursel as your lawyers. At the time you did that, you undertook an obligation to them, and I believe that you want him to fulfill their obligations to you. And I think there is a duty for you to perform your obligation to them.
This case is a case that has been pending for some period of time. I’m not inclined to let those lawyers out of the case. I can tell you that what Mr. Gursel says is not untrue. I have been in situations, and you don’t have quite the same fervor for your clients when you sit there and think that he is stiffing you.
DEFENDANT: I understand that, Your Honor.
JUDGE: I don’t know what that financial problem is, whether or not you have some or what the situation is. The financial arrangement is between yourself and Mr. Gursel, or Mr. McNeil. But this case is going to proceed ahead to trial to resolve those Motions. And I’m not inclined to let them out of the case. If you want to bring another lawyer in, you may, but the case is going to go forward.
STATE’S ATTORNEY: Judge, can I be heard?
JUDGE: Sure.
STATE’S ATTORNEY: Judge, I understand now that Mr. Falls is out on bond. I think he has posted a substantial bond in this case. And on that basis, Judge, I don’t think it appropriate for the Public Defender to represent him.
Judge, for the record, there are two Motions filed before the Court. And whether counsel feels that is substantial bond, I don’t know; but in my mind it is.
Judge, there are two Motions on file by counsel’s law firm. A Motion to Quash Arrest, a Motion to Suppress Statements. We are answering ready today on the Motion to Quash Arrest, and we can even begin the second Motion to Suppress Statements.
Judge, the case has been pending for a long time, fairly long time, and we are answering ready. And we would object to appointment of a different counsel.
JUDGE: Well, at this time, as I’ve indicated, I’m not going to allow your withdrawal.
GURSEL: Judge, I understand this. I don’t want to take up your time. I know you have a busy call. Since you are not going to allow me to withdraw, would you at least cut down — consider one of two things:
A. I will do the Motion to Quash Arrest and then the court will allow me to withdraw; or
B. Do the Motion to Quash Arrest and the court appoint me or appoint the Public Defender to go further.
Because, Your Honor, let me say this to you: I personally have — I have monitored Mr. Falls. I hate to discuss this. This is not my nature to discuss this openly.
* * *
JUDGE: Here is what I am going to do. As I’ve indicated, I think lawyers deserve to be paid. I don’t know what the situation is between yourself and Mr. Falls, but as I’ve indicated, Mr. Gursel, it would unduly, I believe, delay these proceedings if I do not pursue the matter.
One of the things I will contemplate doing, perhaps, is if your posture is — certainly you do have a right to be paid. And if your client is not cooperating for you to be paid, I might find that to be dilatory on his part. I can certainly revoke those bonds, those—
MR. GURSEL: Judge, I’m asking you to revoke his bond and pay me. *** I will do the Motion to Quash Arrest. Past that, I believe the court should allow me out and allow the Public Defender—
JUDGE: I’m not going to allow the Public Defender appointed when a Defendant has $6,000 in bond.
GURSEL: Six Thousand Dollars is not for me to try a homicide, Judge.
JUDGE: For some lawyers, it is probably more than enough. He has you, Mr. Gursel. We are going to do that Motion today.
I’m going to suggest to you, Mr. Falls, that you talk to Mr. Gursel, because as he said, you want to be at liberty. I’m not just whistling Dixie when I talk about perhaps revoking the bond; having that money available for your lawyer, so we can move this case ahead.
Now, if you want to take care of that situation yourself, sometime between now and the date that is set for trial, I suggest you do that. We will do a hearing on the motion today.” (Emphasis added.)

The hearing was continued to another date. At the hearing on the motion to quash arrest, Officer Szudarski testified that he went to the defendant’s home on May 11 at 6:30 a.m. The defendant was not a suspect at the time; and the defendant left with the police voluntarily to attempt to find other witnesses. He was in the police station approximately 24 hours before he was charged.

The defendant testified that he was taken from his home by the police. He had a pair of pants over his pajamas and wore bedroom slippers because the police would not let him put on his shoes. He was handcuffed in the police car and told he was under arrest.

The judge said that he did not believe the defendant and denied the motion to quash. He noted that the length of time that the defendant was in “custody” before he was placed under arrest was somewhat lengthy. After the judge denied the motion to quash the arrest the following occurred:

“JUDGE: I understand on the matter now is there is a Motion to Suppress Statements. I understand you are going to proceed on that, Mr. Gursel?
GURSEL: No. I’m going to withdraw the Motion to Suppress Statements. At this time I’m going to indicate to the court that we would be proceeding to a jury trial; but most likely it will end up being a bench trial. But I want to leave that option open, because I have to really get serious about which way I’m going to proceed. ***.
* * * •
GURSEL: When I say Motion to Suppress Statements, my client made a number of statements. I might not be making a move to deny all of the statements. Some statements he made I may want to suppress. ***.
* * *
JUDGE: If there are some statements you still wish to proceed on, we will do so.
Mr. Falls, apparently there is some discussion between your lawyer and yourself regarding compensation. Certainly I understand lawyers have a right to be paid. As I told you, Mr. Gur-sel, I would not allow him out, because you do have a substantial bond on this matter.
I will ask you now, what is your intention with regards to the proceeds of that bond, [once] the case is over?
DEFENDANT: I will give it to the attorney.
JUDGE: I’m telling you this, Mr. Falls, so that everyone will be aware: once you indicate to me out in open court that that is the agreement between yourself and Mr. Gursel, I won’t let you change your mind, no matter what happens to this case.”

On the next date, both Gursel and McNeil appeared, and the defendant waived a jury. The defendant’s attorneys did not pursue any motion to suppress the statements. We note that those motions to suppress the statements were based on grounds other than an alleged illegality of the arrest.

No purpose would be served by discussing the cases cited by the State and the defendant involving whether particular actions constituted ineffective assistance of counsel. None of those cases involved an attorney who manifested an unwillingness or inability to represent the defendant to the best of his ability unless he was paid a particular sum of money or the question of a defendant being compelled to accept an attorney or face the possibility of having his bond revoked. We believe the peculiar facts of this case require that it be retried.

Gursel made it clear that he could not give the defendant his complete ability and industry unless he was paid and that even the $6,000 was not enough. We find several things significant. First, the motion to suppress statements based on facts other than an alleged illegal arrest was withdrawn without explanation. The State’s Attorney tells us it was trial tactics, but we cannot appreciate the tactical advantage to the defendant when his lawyer did not even try to bar introduction of the crucial piece of evidence against him. Second, the defendant waived the jury. It should be kept in mind that the defendant, by waiving the jury, was placing the fact-finding function in the hands of the judge, who had already determined on the motion to quash that the defendant had testified falsely and that the police officer had testified truthfully. Whether a defendant should be advised to testify is a lawyer’s decision that is generally more wisely reserved until the State’s case has been completed. As a practical matter, that decision was made by the attorney before the State’s case had begun. We note also that jury trials almost always take longer than bench trials.

We also find significant the fact that the defendant’s attorneys rested without calling any witnesses although the day before they had told the court that they intended to call witnesses. No explanation has been provided for the failure to call any witnesses.

The defendant specifically points to the failure to call Detective Armata and Octavia Culps. The defendant’s attorney attempted to elicit testimony from Szudarski that the defendant had told him that his wife had threatened him. Szudarski said that the defendant had not made such a statement to him but rather made it to Armata. The judge informed Gursel that he could call Armata and get the entire conversation in evidence. Gursel did not call Armata. Another witness was Octavia Culps, a friend of Bessie. She testified at the post-trial motion that Bessie was happy with her relationship with the defendant just four days before the shooting and that Bessie had had numerous affairs. The State makes no issue of the admissibility of the testimony of Culps and Armata. Instead, the State says simply that the decision to call a witness is a matter of trial strategy. But there is no showing in this record how trial strategy would have dictated not calling Armata or Culps. Finally, we find it most significant and astonishing that Gursel was willing to have his client’s bond revoked and his client imprisoned. From all these facts, a strong inference is created that the defendant’s attorney wanted to get the case over as quickly as possible.

Added to the implied lack of concern on the part of the defendant’s attorney, we have the judge giving the defendant a Hobson’s choice of either agreeing to pay his attorney out of the bond proceeds or face revocation of the bond and incarceration or proceeding with a new lawyer, if the defendant was able to hire one, who would not be given an opportunity to prepare. The State does not try to justify the threat to revoke a defendant’s bond unless he agreed to pay a lawyer because there is no such justification in the law. Thus, the record shows that the defendant was forced to proceed with a lawyer, who stated for the record that he could not represent the defendant with his full “fervor,” to use the judge’s word, unless he was paid a sum of money more than the $6,000 the defendant could pay him. Under all these circumstances, we judge that this conviction cannot stand and that the defendant is entitled to a new trial.

Since this case is to be retried we will address another argument of the defendant that may recur. The defendant maintains that the judge misconstrued the law when he determined that the evidence was insufficient to establish that the defendant was acting under a “sudden and intense passion resulting from serious provocation by the individual killed.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)(1).) It is the defendant’s position that the judge refused to recognize that “spousal adultery” may be such a “serious provocation” that would reduce a finding of first degree murder to a finding of second degree murder (or voluntary manslaughter). The defendant, citing People v. McCarthy (1989), 132 Ill. 2d 331, 547 N.E.2d 459, argues that the trial court did not, but that this court should, recognize that adulterous behavior of someone other than a spouse can be sufficient to meet the sudden and intense passion requirement of section 9 — 2. In McCarthy the court held that a voluntary manslaughter instruction was not applicable in the case because the parties involved there were no longer in a “marital-type relationship.” (132 Ill. 2d at 342.) It is the position of the defendant that Bessie and the defendant, although not married, were involved in a “marital-type relationship.”

We need not decide whether the law should recognize, as provocation under section 9 — 2, sexual relations with a third party by a person to whom the defendant was not married but with whom the defendant shared a marital-type relationship. We do so because the trial judge in this case decided, and the evidence supports his decision, that the shooting was not the result of a “sudden” passion. He said Bessie’s other relationship was not something newly discovered by the defendant; it was “something that was going on for some period of time on both sides.” The judge apparently considered the established case law which holds that adultery of a spouse is sufficient provocation only when the parties are discovered in the act of adultery or immediately before or after such an act, and the killing immediately follows such discovery. People v. Chevalier (1989), 131 Ill. 2d 66, 544 N.E.2d 942.

There is a history of marital discord in the relationship between Bessie and the defendant. Such marital discord indicated growing anger or resentment against the spouse rather than the sudden and intense passion required by the statute. (People v. Williams (1991), 215 Ill. App. 3d 800, 576 N.E.2d 68.) Second, passion alone is insufficient. (People v. Schorle (1990), 206 Ill. App. 3d 748, 565 N.E.2d 84.) There must be a sufficient serious provocation to result in a finding of second degree murder. As a result, mere words or gestures, even if they result in an admission of adultery and comment negatively on the party’s sexual prowess, are still considered insufficient provocation. (Chevalier, 131 Ill. 2d at 75.) Consequently, regardless of what Bessie said to the defendant that night, there is no support for a finding of second degree murder because the only potential provocation for the defendant’s actions was the words of Bessie.

Finally, the defendant knew of the affair for a period of almost six months before the killing. The period of time between the discovery of the relationship between Hudson and Bessie and the lolling is too attenuated for the defendant’s conviction to be reduced to second degree murder. (Schorle, 206 Ill. App. 3d at 757.) Thus, even if Bessie and the defendant were married, reduction of the offense to second degree murder would not be warranted.

For all these reasons, the judgment of the circuit court is reversed and the cause remanded for a new trial.

Judgment reversed and remanded for a new trial.

McNAMARA and RAKOWSKI, JJ., concur.

      Justice Rosemary LaPorta participated in oral argument before her death. Justice Thomas Rakowski was substituted on the panel. He has listened to the oral argument tape and has read the briefs.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    MARY ANN F. McNULTY et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. ILLINOIS STATE TOLL HIGHWAY AUTHORITY et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—3490
    Opinion filed September 25, 1992.

      Ronald L. Futterman, of Futterman & Howard, Chartered, of Chicago, and Robert J. Meyers, of Winnetka, for appellants.
    Roland W. Burris, Attorney General, of Springfield (Dan K. Webb and Lawrence R. Desideri, both of Winston & Strawn, of Chicago, and Frank M. Howard, of Oak Brook, Special Assistant Attorneys General, and Gary M. Griffin, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Mary Ann E McNulty, Eugene F. Dupee, Jr., Stephen Graham, Stuart K. Jones, Michael J. Hoesley, and Richard T. Hough, brought a class action suit on behalf of certain users of the Northern Illinois Toll Highway (NITH) against defendants, the Illinois State Toll Highway Authority (the Authority) and Myron F. Weil, chairman of the board of directors, Thomas H. Morsch, Jr., executive director, and Jerry Cosentino, Treasurer of the State of Illinois. (The case was never certified to proceed as a class action.) Plaintiffs’ complaint alleged that the Authority failed to fix and adjust tolls at the lowest possible rate thereby unlawfully accumulating and withholding a surplus fund of $74 million; that the Authority wrongfully diverted and misappropriated the NITH surplus to pay construction costs on a new and separate tollway (the North-South); and also violated plaintiffs’ civil rights under 42 U.S.C. §1983 (1988). Plaintiffs appeal the trial court’s dismissal of counts I, II and VI of the second amended complaint for failure to state a cause of action.

We adduce the following background from the affidavits, pleadings and documents filed. In 1953, the Illinois State Toll Highway Commission (Commission) was established to provide for the construction, regulation, and maintenance of a toll highway or a system of toll highways to accommodate the travelling public through and within the State of Illinois. At the time the NITH commenced operations in 1958, it consisted of three toll highways, which included the Tri-State, the Northwest, and the East-West toll highways. These three toll highways total 256 miles and are connected by interchanges so that vehicles can travel on the various highways without leaving the system.

In order to finance the construction of the NITH, revenue bonds were sold in a total amount of $415 million. The Illinois Toll Highway Act (Act) (Ill. Rev. Stat. 1953, ch. 121, par. 314a26 et seq.) empowered the Commission to fix and revise tolls or charges for the privilege of using the toll highway. The tolls were to be fixed and adjusted to provide a fund at least sufficient to pay the cost of: (1) maintaining, repairing, regulating and operating the toll highway, and (2) the bonds and interest thereof and all sinking fund requirements. The original Act contemplated that when the bonds were paid off and funds es-crowed for future maintenance, the NITH would be operated free of tolls and the Commission would be dissolved.

On August 5, 1969, section 15 (currently section 19) of the Act was amended to provide that “tolls shall be so fixed and adjusted at the lowest possible rate” to provide funds sufficient to pay the cost of maintaining, repairing, regulating and operating the toll highway, including only the necessary expenses of the Commission, the bonds and interest thereof and all sinking fund requirements. (Emphasis added.) Ill. Rev. Stat. 1983, ch. 121, par. 100-19.

In July 1984 the Illinois Senate issued a joint resolution authorizing the Authority to expand the Illinois toll highway system to include a North-South toll highway, which consisted of a 17-mile road between Army Trail Road and Bolingbrook. The legislature concurrently amended several provisions of the Act. That portion of section 32 which had previously disallowed the Authority from pledging the revenues produced by the present toll highways for any purpose in relation to any other toll highway was deleted from the Act. Section 21 of the Act was amended to provide that only when all bonds and “all interest” are paid does the toll highway become part of the State highway system. (Previously, the Act provided that the toll highways in existence prior to 1977 would become part of the State highway system when all bonds and interest on only those toll highways were paid.) Consequently, toll revenues collected after August 15, 1984, could be used to pay principal and interest on bonds issued for any purpose with respect to the NITH bonds as well as the bonds issued to construct the North-South toll highway.

The North-South toll highway was financed through the sale of $400,825,000 of revenue bonds sold on October 1, 1986. The new highway was constructed, substantially paid for and began operating on December 27,1989.

On September 27, 1989, the Illinois Auditor General (Auditor) published an audit for the year ending December 31, 1988. In the report, the Auditor found that the Authority “may not be charging the lowest possible toll rate as statutorily required” and that named authorized uses do not include new construction on the North-South toll highway.

On December 15, 1989, plaintiffs filed a one-count complaint, alleging that the Authority was violating the Act by using revenues from the first three toll highways to pay for the new construction on the North-South toll highway. The complaint was subsequently amended with two new counts not at issue in this appeal. Defendant filed a motion to dismiss plaintiffs’ complaint. During the pendency of that motion, the legislature again amended section 19(c) of the Act on August 10, 1990, to provide:

“[T]olls shall be so fixed and adjusted at rates calculated to provide the lowest reasonable toll rates that will provide funds sufficient with other revenues of the Authority to pay, (a) the cost of the construction of a toll highway authorized by joint resolution of the General Assembly *** and the reconstruction, major repairs or improvements of toll highways ***.
Among other matters, this amendatory Act *** is intended to clarify and confirm the prior intent of the General Assembly to allow toll revenues from the toll highway system to be used to pay a portion of the cost of the construction of the North-South Toll Highway ***.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 121, par. 100 — 19.

Plaintiffs filed a second amended complaint containing six counts. In count I, plaintiffs alleged that defendants violated the Act prior to August 15, 1984, by accumulating and withholding a fund of surplus NITH toll revenues which totaled at least $74 million, failed to apply the fund toward a reduction of the NITH toll rates and to fix and adjust tolls on the NITH at the lowest possible rate. Plaintiffs sought the following relief: a declaration that the fund of surplus NITH tolls be held in a constructive trust for the benefit of plaintiffs and the class; an account for surplus tolls illegally withheld and/or subsequently diverted; and that defendants reduce the NITH rate schedule.

In count II, plaintiffs contended that defendants violated the Act between August 15, 1984, and August 10, 1990, by wrongfully diverting surplus NITH toll revenues collected prior to August 10, 1990 (at least $81 million), to pay construction costs on the North-South toll highway. In count VI, plaintiffs alleged that they were deprived of their property rights to the lowest possible rate without due process, in violation of 42 U.S.C. §1983 (1988).

The trial court dismissed plaintiffs’ complaint, finding the unlawful diversion of funds allegation to be illogical, and because it would ultimately increase the costs of toll roads to all users. The judge determined that the North-South extension must be viewed as an “integral part of the total system of toll roads and not as a collection of individual roads with individual groups of users” because the total system approach most accurately reflected legislative intent. Further, the court found that the Authority’s use of funds from the surplus rather than a series of bond issues contributed to lower toll rates by virtue of the fact that the Commission need not be subject to the vagaries of the financial bond market. The trial court dismissed counts I and II. (Count VI was premised upon violations of counts I and II; as such, plaintiffs concede that it is no longer viable if counts I and II are dismissed.)

It is well established that a cause of action should be dismissed on the pleadings only if it is clearly apparent that no set of facts can be proved which will entitle the plaintiff to recover. (DiBenedetto v. Flora Township (1991), 219 Ill. App. 3d 1091, 580 N.E.2d 647.) When the legal sufficiency of a complaint is challenged by a section 2 — 615 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615) motion to strike or dismiss, all well-pleaded facts in the complaint must be taken as true, and “a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted.” Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 505, 565 N.E.2d 654.

Plaintiffs first contend that the trial court erred in dismissing count I, since after section 19 was amended in August 1969, the Authority was obligated to fix and adjust tolls at the “lowest possible rate” to cover costs, and no longer had the right to accumulate excess tolls or surplus. Plaintiffs rely upon Morton Arboretum v. Thompson (N.D. Ill. 1984), 605 F. Supp. 486, 491, in which the district court recognized that pursuant to section 19, the Authority had the statutory duty to keep tolls “at the lowest level necessary for discharge of Authority’s obligations, thus preventing a surplus build up.”

We find that plaintiffs’ reliance upon Morton Arboretum is misplaced, because section 19 of the Act, as amended in 1969, expressly permits the Authority to provide for the accumulation of tolls and revenues for the payment of certain authorized costs. As previously set forth, section 19 states that the Authority shall fix and adjust tolls at the lowest possible rate “that will provide funds sufficient *** to pay *** the cost of maintaining, repairing, regulating and operating the toll highways including *** other requirements provided by resolutions.” (Ill. Rev. Stat. 1991, ch. 121, par. 100 — 19.) Thus, it was within the purview of the statute that funds would be held in a general reserve to cover the considerable operating expenses of a toll highway spanning 256 miles. In addition, the Act also expressly provides for other requirements provided by joint resolution, such as the joint resolution passed in July 1984 authorizing the inclusion of the North-South toll highway into the present system.

More importantly, however, plaintiffs have failed to provide any factual support for their conclusive allegations that the surplus tolls were improperly collected, or that they were diverted for any unauthorized purpose. Indeed, plaintiffs’ failure to state the manner in which the surplus funds were wrongfully withheld or used is conspicuous by its absence. The mere assertion that surplus tolls “unlawifully withheld and/or diverted have been unlawfully commingled with other funds” is insufficient in itself to support a cause of action. A pleader is required to set out the ultimate facts that support his cause of action (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37; People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 435 N.E.2d 463), and legal conclusions unsupported by allegations of specific facts are insufficient. Our supreme court has consistently held that “a complaint which does not allege facts, the existence of which are necessary to enable a plaintiff to recoverf,] does not state a cause of action and that such deficiency may not be cured by liberal construction or argument.” (People ex rel. Kucharski v. Loop Mortgage Co. (1969), 43 Ill. 2d 150, 152, 251 N.E.2d 211.) Plaintiffs have failed to identify or demonstrate any improper or unauthorized purpose for which the tolls were used. Accordingly, the mere existence of a $74 million surplus in a general reserve account, without more, is insufficient to constitute a violation of the Act.

We also note that section 32 of the Act (Ill. Rev. Stat. 1983, ch. 121, par. 100 — 32) explicitly states:

“All determinations made by the Authority in the exercise of its discretionary powers, with the approval of the Governor if such approval is expressly required by the provisions of this Act, including without ¡imitation *** the tolls to be charged for the use [of the tollway] *** shall be conclusive and shall not be subject to review by the courts or by any administrative agency of the State.”

In Hammerman v. Illinois State Toll Highway Authority (1986), 148 Ill. App. 3d 259, 498 N.E.2d 795, this court dismissed an action alleging mismanagement of funds by the tollway authority and unconstitutional dual taxation of motorists. In Hammerman, the court noted that such actions challenging the amount of the tolls charged and seeking a refund thereof are impermissible absent the presence of bad faith, fraud, corruption, manifest oppression or a clear abuse of discretion. (See also People v. Illinois Toll Highway Comm’n (1954), 3 Ill. 2d 218, 120 N.E.2d 35.) Again, plaintiffs have failed to specifically state the presence of any such factors to indicate that defendants abused their discretion in accruing the $74 million surplus.

While plaintiffs’ briefs contain several other arguments in support of their position that count I states a cognizable claim that should be sustained, we need not consider those issues in view of our finding that plaintiffs have failed to demonstrate with particularity the method in which the surplus funds were allegedly wrongfully diverted or misappropriated, or the presence of any unlawful action on the part of defendants.

Plaintiffs also raise several related arguments pertaining to count II, which alleges that defendants violated section 19 of the Act in effect from August 15, 1984, through August 15, 1990, by using the purported surplus tolls accrued from the three existing toll highways to pay for a portion of construction and land acquisition costs on the North-South. Plaintiffs rely upon the Auditor’s report, which states that defendants were in violation of the 1984 Act by using toll revenues to pay for the new construction on the North-South toll highway. We are unpersuaded by plaintiffs’ arguments, since the Act clearly states that it was within the public interest to provide for the construction and operation of a “toll highway or a system of toll highways.” Ill. Rev. Stat. 1989, ch. 121, par. 100 — 1. See also People ex rel. Castle v. Taylor (1955), 7 Ill. 2d 501, 131 N.E.2d 108 (wherein our supreme court determined prior to the time that the original toll highway was completed it was intended that a single toll highway might consist of more than one route).

In 1984, the joint resolution issued by the Illinois Senate to include the North-South toll highway was accompanied by several legislative amendments to insure that the new road was fully integrated into the existing toll highway. Section 32, which prohibited the Authority from pledging the revenues produced by the present toll highway for any other purpose in relation to any other toll highway, was deleted from the Act. Too, section 21 was amended to provide that a toll highway would not be incorporated into the State highway system until such time that all bonds and interest were paid. Most significantly, we look to the express language of the amendatory Act passed on August 10, 1990, which clearly states that its intent was to clarify and confirm “the prior intent of the General Assembly to allow toll revenues from the toll highway system to be used to pay a portion of the cost of the construction of the North-South Toll Highway.” Ill. Rev. Stat. 1991, ch. 121, par. 100 — 19.

It is well established that the fundamental principle of statutory construction is to give effect to the intent of the legislature. (American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 537 N.E.2d 284; County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076; In re Marriage of Freeman (1985), 106 Ill. 2d 290, 478 N.E.2d 326; City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 473 N.E.2d 1313.) Courts should first look to the statutory language as the best indication of the intent of the drafters. (County of Du Page, 109 Ill. 2d 143, 485 N.E.2d 1076; People v. Boykin (1983), 94 Ill. 2d 138, 445 N.E.2d 1174.) An amendment to a statute is an appropriate source for determining the legislative intent. People v. Rink (1983), 97 Ill. 2d 533, 455 N.E.2d 64.

In the present case, such unequivocal language as found in the amendatory Act of 1990 supports only one conclusion: that the legislature fully intended that tolls and revenues collected from the existing highway system could be applied to construction and land acquisition costs for the North-South toll highway. Accordingly, we find that the trial court properly dismissed count II for failure to state a cause of action.

In view of our affirmation of the trial court’s dismissal of counts I and II, count VI, which is premised upon plaintiffs’ establishment of a right of property from which due process has been wrongfully denied, must necessarily fall.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE STEIGMANN JUSTICE LUND,

text:
    UNITED CITIES GAS COMPANY, Petitioner, v. ILLINOIS COMMERCE COMMISSION, Respondent.
    Fourth District
    No. 4—91—0940
    Opinion filed September 10, 1992.
    Rehearing denied November 13, 1992.

      Daniel J. Kucera, of Chapman & Cutler, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Carmen L. Fosco, Special Assistant Attorney General, of Chicago, of counsel), for respondent.
   JUSTICE STEIGMANN

delivered the opinion of the court:

United Cities Gas Company (United Cities) appeals from the orders of the Illinois Commerce Commission (Commission) entered following a proceeding to reconcile revenues collected by United Cities in 1988 with the actual cost of gas purchased for that year. (Illinois Commerce Comm’n v. Kaskaskia Gas Co. (Oct. 4, 1991), _ Ill. Commerce Comm’n Rep. _ (ICC Nos. 89 — 0357, 89 — 0365 cons.) (United Cities Gas Co., respondent in ICC No. 89 — 0365) (hereinafter Kaskaskia).) Specifically, United Cities appeals from that portion of the Commission’s orders which denied recovery of $260,553 of gas costs allocated to United Cities’ Illinois customers and the Commission’s order to refund, with interest, that amount.

We affirm.

I. Facts

In September 1989, the Commission commenced reconciliation proceedings in accordance with section 9 — 220 of the Public Utilities Act (Act) (Ill. Rev. Stat. 1989, ch.1112/3, par. 9 — 220) and directed United Cities to present evidence showing its reconciliation of purchased gas adjustment (PGA) clause revenues with the actual cost of gas purchased for the 12 months ending December 31, 1988.

A. The Administrative Process

In Citizens Utilities Co. v. Illinois Commerce Comm’n (1988), 124 Ill. 2d 195, 200-01, 529 N.E.2d 510, 512-13, the supreme court explained the process by which revenues are received by public utilities as follows:

“In establishing the rates that a public utility is to charge its customers, the Commission bases the determination on the company’s operating costs, rate base, and allowed rate of return. A public utility is entitled to recover in its rates certain operating costs. A public utility is also entitled to earn a return on its rate base, or the amount of its invested capital; the return is the product of the allowed rate of return and rate base. The sum of those amounts — operating costs and return on rate base — is known as the company’s revenue requirement. The components of the ratemaking determination may be expressed in ‘the classic ratemaking formula R (revenue requirement) = C (operating costs) + Ir (invested capital or rate base times rate of return on capital).’ (City of Charlottesville, Virginia v. Federal Energy Regulatory Comm’n (D.C. Cir. 1985), 774 F.2d 1205, 1217, citing T. Morgan, Economic Regulation of Business 219 (1976).) The same formula is used by the Commission in ratemaking determinations for Illinois. The revenue requirement represents the amount the company is permitted to recover from its customers in the rates it charges. Ratemaking is done in the context of a test year ***.”

Under section 9 — 220 of the Act, the Commission may authorize utilities in Illinois to recover all gas purchases through the application of the Commission’s PGA clause. That section reads as follows:

“Notwithstanding the provisions of Section 9 — 201, the Commission may authorize the increase or decrease of rates and charges based upon changes in the cost of fuel used in the generation or production of electric power, changes in the cost of purchased power, or changes in the cost of purchased gas through the application of fuel adjustment clauses or purchased gas adjustment clauses. *** Cost shall be based upon uniformly applied accounting principles. Annually, the Commission shall initiate public hearings to determine whether the clauses reflect actual costs of fuel, gas or power purchased to determine whether such purchases were prudent, and to reconcile any amounts collected with the actual costs of fuel, power or gas prudently purchased. In each such proceeding, the burden of proof shall be upon the utility to establish the prudency of its cost of fuel, power or gas purchases and costs.” Ill. Rev. Stat. 1989, ch. 1112/3, par. 9-220.

Gas supply costs are recovered exclusively under the PGA clause, while all other costs of service are recovered in base rates. Base rates are set in periodic rate hearings or cases. (See Citizens Utilities, 124 Ill. 2d at 200-01, 529 N.E.2d at 512-13.) Under the PGA clause, a gas utility’s gas costs are first estimated and then incorporated into a formula that determines in a gas cost rate. This gas cost rate is then used in combination with the base rate to determine a customer’s monthly bill. Any fluctuations in the cost of fuel and power incurred by a utility are passed on to the consumer on a monthly basis through the PGA clause. See Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1988), 171 Ill. App. 3d 948, 955, 525 N.E.2d 1053,1056.

Section 9 — 220 of the Act requires a gas utility to reconcile the revenues received from customers through the gas cost rate with the gas supply costs it actually incurred for the prior year. Because the gas cost rate as determined by the PGA clause is based on estimates, and actual gas prices can change during the year, there can be either an over collection or an under collection of gas costs by the utility. After reconciliation, the utility collects any “underrecovery” for the year from the customers or refunds any “overrecovery” by adjustments to a factor (R4) of the PGA clause. Any adjustment takes effect the following year. Accordingly, the Commission conducts annual proceedings to reconcile costs and revenues.

The proceedings at issue in this case involve the reconciliation of the gas supply costs and revenues of United Cities in 1988 for its Illinois customers. (This reconciliation procedure is known as a “true-up.”)

B. Evidence Adduced at the Hearings

United Cities is an investor-owned public utility regulated by the Commission. It provides natural gas service to five separate Illinois service areas, including Harrisburg, Illinois. United Cities provides natural gas service in seven other States and is subject to the regulatory jurisdiction of those States.

Texas Eastern Transmission Corporation (Texas Eastern) is the pipeline supplier for United Cities’ Harrisburg service area, as well as for Unitéd Cities’ Franklin and Murfreesboro service areas in Tennessee. United Cities’ contracts with individual pipeline suppliers are approved by the Federal Energy Regulatory Commission (FERC). United Cities purchased gas from Texas Eastern under a demand/commodity rate schedule that included a fixed demand charge, and a commodity charge based on volume usage. The demand charge is composed of two fees: a contract demand charge and a storage demand charge. In exchange for the contract demand charge, Texas Eastern guaranteed that it would have gas and pipeline capacity to deliver to United Cities’ customers. This contract demand charge was a fixed monthly amount paid by United Cities to Texas Eastern. The storage demand charge guaranteed that Texas Eastern would have field storage and tank capacity and actual gas up to the contracted daily maximum quantity required for United Cities’ customers.

The demand charge paid by United Cities to Texas Eastern was determined by estimating the demand volume (the company used 19,785 decatherms per month as its estimate) multiplied by the demand rate. This amount was United Cities’ gas supply expense that United Cities paid and which was, in turn, passed on to United Cities’ customers. These costs were recovered from United Cities’ Tennessee and Illinois customers by allocating these costs portionate to each service area’s estimated peak day consumption. That is, using the estimated peak day demand for both its Illinois and Tennessee customers, United Cities calculated the proportion of gas used by Tennessee customers and the proportion of gas used by Illinois customers. In 1988, these proportions were 42% for Illinois and 58% for Tennesseé. Consequently, United Cities billed 42% of its Texas Eastern demand charge to Harrisburg, Illinois, customers in 1988. Using these allocation factors, United Cities recovered 42% of its demand charge costs from Illinois customers through the PGA clause.

These allocation percentages were determined in 1984 as part of a study performed for and submitted in a rate case before the Tennessee Public Service Commission (Tennessee Commission). United Cities used these allocation percentages when it went before the Tennessee Commission in 1984, 1986, and 1989. These 1984 allocation factors were used for determining customer rates for Harrisburg from 1986 through 1988, and most of 1989, without any interim review by United Cities. United Cities did not review its allocation factors in 1988 because it had just gone before the Tennessee Commission in 1986 and had used the allocation percentages presented at that time to bill its Harrisburg customers. The allocation factors for Harrisburg were not changed until December 1989, at which time Harrisburg’s allocation factor was lowered from 42% to approximately 28%.

At the hearing on the 1988 reconciliation, Bobby J. Cline, a rate analyst for United Cities, testified that reconciling the revenues billed under the PGA clause with the gas supply costs under the Texas Eastern contract for 1988 resulted in an “undercollection,” and a net amount due United Cities, of $171,170.88. Of that net amount, the underrecovery due from the Harrisburg service area was $72,090.57. That undercollection for 1988 was applied to the R4 factor of the PGA clause in 1989, and was billed and collected from Harrisburg customers from April 1, 1989, through March 31, 1990. (Despite the fact that revenues and costs for 1988 are at issue, the Commission did not initiate these proceedings until September 22, 1989, midway through the year in which the 1988 adjustment was being collected from customers.)

Cline explained the methodology United Cities used to allocate its Texas Eastern demand charges to its Tennessee and Illinois customers (as discussed above). Cline, who was United Cities’ only witness in these proceedings, testified that the company did not review the demand cost allocation percentages used in the 1986 Tennessee rate case and applied to both Illinois and Tennessee customers in 1987 because “[ejvidently a person at the work did not see a need to revise the allocation factorfs].” Furthermore, United Cities did not redetermine these allocation percentages for Texas Eastern demand charges in 1988 because it did not file a 1988 rate case challenge in Tennessee. United Cities continued to allocate 42% of its Texas Eastern demand charges to its Harrisburg customers until December 1989, when it changed Harrisburg’s allocation of Texas Eastern demand charges to approximately 28%.

Cline added that Tennessee does not have a cost recovery system. In Tennessee, the majority of gas costs are included in the base rates (unlike in Illinois, where gas costs are recovered exclusively under the PGA clause and all other costs of service are recovered in the base rate). Cline testified that, unlike in Illinois, there is no true-up or reconciliation of gas costs and revenues in Tennessee. Cline testified that differences between Illinois and Tennessee administrative procedures prevent United Cities from changing its Tennessee allocation. He explained as follows:

“The Illinois and Tennessee Commissions have different methodologies for recovery of this cost. The gas cost recovery in Illinois is accomplished through the Uniform PGA Clause. The gas cost recovery in Tennessee during 1988 was accomplished through the inclusion of gas cost in both base rates and the PGA. For the period in question, in Tennessee, there is no true-up of gas costs, and there can be no change in demand allocation except in a future general rate case filing.”

John A. Link, an accountant for the Commission’s public utilities division, testified on behalf of the Commission’s staff (Staff) and disputed United Cities’ reconciliation only with respect to its Harrisburg service area. Link testified that Harrisburg’s actual percentage of peak day demand in 1988 was 28.69% as compared to the 42% projected and allocated by United Cities in 1988. Consequently, Link recommended that the company refund $260,553 (the difference between actual Harrisburg demand and the allocation percentage), plus interest, to the customers in the Harrisburg service area. (This amount would be refunded to Harrisburg customers by applying it to the R4 factor of the PGA clause.) Link testified that this adjustment was necessary because United Cities used outdated allocation percentages in its internal apportionment of demand costs.

Link emphasized that United Cities should have used more current data in allocating demand costs. According to Link, the allocation percentages are nothing more than an internal accounting methodology United Cities used to allocate its fixed Texas Eastern demand charge. He added that, as far as he knew, this was the first case addressing the allocation of demand charges. Finally, Link suggested that the actual costs incurred by United Cities for gas purchased in 1988 had already been collected from Tennessee customers through a combination of PGA revenue and base revenue because of increased unit sales which recovered demand charges along with other expenses. However, neither United Cities nor Staff had ever determined whether and to what extent United Cities “overrecovered” or “underrecovered” from its Tennessee customers the 58% of the demand charges allocated to Tennessee.

C. The Commission Order

The Commission issued its order on October 4, 1991, agreeing with Staffs adjustment because of the change in proportionate use between Harrisburg and Tennessee customers, and United Cities’ failure to review its allocation percentages. That order states, in part, the following:

“The Commission, having considered the entire record herein and being fully advised in the premises, is of the opinion and finds that:
* * *
(4) the evidence indicates that Respondent [United Cities] acted reasonably and prudently in its purchases of natural gas during calendar year 1988;
(5) for calendar year 1988, Respondent’s reconciliation evidence indicates that it experienced an undercollection of gas costs in the amount of $171,170.88; this amount was reflected in Respondent’s R4 factor filed in 1989 [and recovered from customers between April 1, 1989, and March 31, 1990]; Staff’s proposed adjustment, which reflects a decrease in gas cost in the Harrisburg service area due to a revision in the Texas Eastern demand charge allocation factor, is reasonable and should be approved; Staff’s proposed adjustment is necessary to prevent Respondent’s customers in the Harrisburg service area from being billed for PGA revenues in excess of the cost of gas prudently purchased; Respondent should refund its overcollection of Texas Eastern demand charges in the amount $260,553 plus interest to its customers in the Harrisburg service area through the R4 factor of the PGA in accordance with the provisions of 83 Ill. Adm. Code 525.60;
(6) Respondent should review the Texas Eastern demand charge allocation factors at the time of each Tennessee rate case; Respondent should submit its study of such allocation factors to the Accounting Department of the [Illinois Commerce] Commission’s Public Utilities Division at the same time that it is submitted for review in Tennessee.” (Emphasis added.) Kaskaskia (Oct. 4, 1991), _ Ill. Commerce Comm’n Rep. at _ (ICC Nos. 89 — 0357, 89 — 0365 cons., slip op. at 17-18).

The Commission filed an amendatory order on October 17, 1991, that did not substantively affect its previous findings. Illinois Commerce Comm’n v. Kaskaskia Gas Co. (Oct. 17, 1991), _ Ill. Commerce Comm’n Rep. __ (ICC Nos. 89 — 0357, 89 — 0365, cons.).

II. Standard Of Review

An appellate court’s jurisdiction of direct appeals from the Commission is governed by section 10 — 201 of the Act (Ill. Rev. Stat. 1991, ch. 1112/3, par. 10 — 201). The Commission’s findings of fact are to be considered prima facie true, and the burden of proof on all issues raised by an appeal is on the party appealing the Commission’s order. (Ill. Rev. Stat. 1991, ch. 1112/3, par. 10 — 201(d).) Commission decisions are “entitled to great weight as being the judgment of a tribunal appointed by law and informed by experience.” (Village of Apple River v. Illinois Commerce Comm’n (1960), 18 Ill. 2d 518, 523, 165 N.E.2d 329, 332.) In considering the record before it, the Commission is not required to make a finding on each evidentiary claim. (United Cities Gas Co. v. Illinois Commerce Comm’n (1971), 48 Ill. 2d 36, 40, 268 N.E.2d 32, 34.) Its findings need only be specific enough to permit an intelligent review of its decision. (Illinois Central R.R. Co. v. Illinois Commerce Comm’n (1952), 411 Ill. 526, 528, 104 N.E.2d 796, 797.) Further, an order of the Commission will not be set aside unless it is against the manifest weight of the evidence. Rural Electric Convenience Cooperative Co. v. Illinois Commerce Comm’n (1979), 75 Ill. 2d 142, 148, 387 N.E.2d 670, 673.

III. Analysis

United Cities raises 10 issues on appeal, all of which (it argues) require a reversal of the Commission orders. However, section 10 — 201 grants an appellate court the power to remand, reverse, or affirm, in whole or in part, an order of the Commission in only four circumstances: if (1) the Commission’s order is not supported by substantial evidence on the record; (2) the Commission acted outside its authority, or lacked jurisdiction to enter the order; (3) the Commission’s rule, regulation, order or decision violates the State or Federal constitution or laws; or (4) the order, or the proceedings from which it ensued, violated the State or Federal constitution or laws. See Ill. Rev. Stat. 1991, ch. 1112/3, par. 10 — 201(e)(iv); see also Illinois Bell Telephone Co. v. Illinois Commerce Comm’n (1973), 55 Ill. 2d 461, 469, 303 N.E.2d 364, 369.

A. Recovery of Demand Costs

United Cities argues that the Commission orders must be reversed because they prevent it from recovering all of its costs. United Cities argues that the demand charge is akin to an insurance premium to be paid by Illinois consumers, explaining as follows:

“As is the case [with] coverage under insurance policies, the contract demand and the storage demand do not change over the life of the pipeline contract. Therefore, as Mr. Cline testified, contract demand services and storage demand services are established by means of long-term contracts from five to twenty-five years in length. The contracts, therefore, necessarily are future oriented. Any historical data used to develop the contract demand and storage demand must be adjusted, at the time of contract, for weather normalization, customer growth and conservation expected for the life of the contract. Otherwise, a ga tility may not secure enough gas supply to meet customers’ requirements.”

Cline’s surrebuttal testimony referred to in this argument was as follows:

“By way of analogy, if a person paid medical insurance premiums for a year but did not become ill, no one would argue that the person had been overcharged. The person benefitted from the security of the insurance. Likewise, the Harrisburg customers in 1988 benefitted from the security that a certain level (42%) of contract demand — [i.e.], capacity — was reserved for them. That the projected peak day demand (amount of insurance) may not have been fully called upon does not detract from the fact that the security was there for them. No one has questioned that the capacity reserved for them was not reasonably forecasted.” (Emphasis added.)

Therefore, United Cities concludes that the Commission “erroneously disregarded the fact that Illinois ratepayers received the full benefit of 42% of the Texas Eastern contract and storage demand in 1988. Having received the benefit, the Illinois ratepayers properly were charged 42% of the cost of that demand.” (Emphasis in original.)

1. Case Law

In United Cities Gas Co. v. Illinois Commerce Comm’n (1992), 225 Ill. App. 3d 771, 587 N.E.2d 581, this court ruled that a consulting and noncompetition agreement conferred a benefit to United Cities’ ratepayers. Accordingly, we reversed the decision of the Commission and decided that the costs associated with that agreement were “a legitimately incurred cost of service which it [(United Cities)] is entitled to recover in its rates.” (United Cities, 225 Ill. App. 3d at 778, 587 N.E.2d at 585.) However, in allowing United Cities to pass on this expense, United Cities was only able to bill Illinois consumers for that amount “attributable to Illinois” consumers. (See United Cities, 225 Ill. App. 3d at 773, 587 N.E.2d at 582.) Therefore, that United Cities decision is not persuasive here where the issue is not the legitimacy of the cost, but rather the reconciliation of costs and revenues.

An earlier decision of the Commission, referred to by these parties as the “Barnsley order” (United Cities Gas Co. (Nov. 19, 1990), _ Ill. Commerce Comm’n Rep. _ (ICC Nos. 90 — 0008, 90 — 0152 cons.)), involved United Cities’ acquisition of the Barnsley gas storage field in Kentucky in 1989. United Cities proposed that the cost of acquiring the Barnsley field should be allocated 24.06% to Illinois customers and 75.94% to Tennessee customers. United Cities’ manager of accounting for its regulatory affairs department testified that these allocations were based on estimated peak day usage of the Barnsley field by Illinois and Tennessee customers. (United Cities Gas Co. (Nov. 19, 1990), _ Ill. Commerce Comm’n Rep. at _ (ICC Nos. 90 — 0008, 90 — 0152 cons., slip op. at 11).) Recognizing that the statute does not specifically indicate how demand costs should be allocated (a problem that has now come to fruition in the present case), the Commission accepted the compromise position of basing allocation on the cost of capital, and not on estimated peak day demand. The Commission further held that these allocation factors were to be reviewed at the time of the Company’s next Tennessee rate case. See United Cities Gas Co. (Nov. 19, 1990), _ Ill. Commerce Comm’n Rep. at _ (ICC Nos. 90 — 0008, 90 — 0152 cons., slip op. at 17).

In Illinois Commerce Comm’n v. Iowa-Illinois Gas & Electric Co. (1989), 105 Pub. Util. Rep. 4th 353, the Commission reviewed the collection and allocation of nuclear power plant decommissioning costs which were recovered through base rates, not the PGA clause. These costs were allocated by using a three-year average of the noncoincident peak demand in the two States Iowa-Illinois served. The Commission decided that these costs should be recovered through a rider mechanism, and not through the PGA clause or a rate case proceeding. The Commission also accepted Iowa-Uli-nois’ allocation method, but the decision included that the allocations would be subject to a true-up for over- or underrecovery. See Iowa-Illinois, 105 Pub. Util. Rep. 4th at 364.

2. Statutory Guidance

Section 36 of the former Act (see Ill. Rev. Stat. 1983, ch. 1112/3, par. 36), the predecessor to section 9 — 220, was interpreted in Business & Professional People (171 Ill. App. 3d at 957-58, 525 N.E.2d at 1058), wherein the appellate court said the following:

“The language of section 36 demonstrates a grant of broad discretion to the Commission by the legislature. The Commission was authorized to investigate the feasibility of adopting uniform fuel (and gas) adjustment clauses, discretion to implement such clauses, and authority to promulgate rules and regulations therefor. The only precise legislative directives were that the Commission hold an annual reconciliation proceeding and that costs imposed through the UFAC [(now the PGA)] be actual, prudent, and based upon uniformly applied
accounting principles.
* * *
Thus, under both the Public Utilities Act and the Public Utilities Regulatory Policies Act of 1978, the Commission had authority to inquire into production management in determining whether fuel purchases were ‘prudently’ made. To conclude otherwise would result in an extremely narrow interpretation of a broad grant of statutory power and would also defy common sense. *** If, in a fuel reconciliation proceeding, the Commission could not examine the reasons that necessitated a fuel purchase, the prudence standard would have no effect on ensuring a just and reasonable rate as required by sections 36 and 41 of the Act; a utility could generate electricity in any manner it chose, efficiently or inefficiently, and the Commission would be limited to determining merely whether the utility paid a prudent price for the fuel. We do not believe that this was the intent of either our State legislature or Congress in enacting the fuel adjustment clauses legislation.” (Emphasis added.)

3. Conclusion: Demand Costs

We believe that the refund ordered against United Cities is consistent with the responsibilities delegated to the Commission under section 9 — 220. United Cities may continue to allocate its demand charges by the same allocation methodology, but these cost recoveries are subject to a true-up under section 9 — 220. To rule otherwise would reject the applicability of the statute to these costs. “[Wjhere administration of a broad statutory standard has been delegated to an agency’s discretion, courts shall rely upon the agency’s interpretation where there is reasonable debate as to the statute’s meaning.” Business & Professional People, 171 Ill. App. 3d at 957, 525 N.E.2d at 1057.

We disagree with United Cities’ characterization of the demand cost allocations as insurance for which the company contracted with Texas Eastern in order to meet its obligations to Illinois ratepayers. While Illinois ratepayers are required to pay for the security that a certain level of contract demand will be reserved for them, that does not mean that these costs are not subject to a true-up. Indeed, the very purpose of section 9 — 220 is to reconcile legitimate costs, such as payments United Cities made to Texas Eastern, with revenues received to cover those costs.

Oddly, despite the Commission’s specific finding that United Cities “acted reasonably and prudently in its purchases of natural gas during calendar year 1988” (see Kaskaskia (Oct. 4, 1991), _ Ill. Commerce Comm’n Rep. at _ (ICC Nos. 89 — 0357, 89 — 0365 cons., slip op. at 18)), the Attorney General argues the contrary to this court. Despite this argument, we need not address the prudence of United Cities’ purchases because (1) they are not relevant to a cost recovery true-up proceeding, and (2) the Commission’s finding that United Cities’ purchases were prudent is not against the manifest weight of the evidence.

B. Res Judicata

United Cities argues that the “Barnsley order” establishes precedent that the Commission must follow. Although the Commission agreed with United Cities’ proposed cost allocations in that docket, it also held that these allocation factors were to be recalculated at the terms of the next Tennessee rate case. (See United Cities Gas Co. (Nov. 19, 1990), _ Ill. Commerce Comm’n Rep. at _ (ICC Nos. 90 — 0008, 90 — 0152 cons., slip op. at 17).) The Iowa-Illinois case cited by United Cities is similarly unpersuasive in that it maintained the allocation method, but did not address the accuracy of the allocation percentages or the ability of the Commission to reconcile revenues in a true-up proceeding.

Decisions of the Commission are not res judicata. “The concept of public regulation includes of necessity the philosophy that the commission shall have power to deal freely with each situation as it comes before it, regardless of how it may have dealt with a similar or even the same situation in a previous proceeding.” (Mississippi River Fuel Corp. v. Illinois Commerce Comm’n (1953), 1 Ill. 2d 509, 513, 116 N.E.2d 394, 396-97.) Thus, like other administrative agencies, the Commission is free to change its standards so long as such changes are not arbitrary and capricious. (City of Chicago v. Illinois Commerce Comm’n (1985), 133 Ill. App. 3d 435, 440-41, 478 N.E.2d 1369, 1373-74.) In fact, as we view this case (and as the Commission argued it), the Commission is not changing its methodology at all. Instead, the Commission is merely exercising its rights and obligations under section 9 — 220.

Citing to both Mississippi River Fuel and Iowa-Illinois in its conclusion, the Commission order stated the following regarding the “Barnsley order”:

“The Commission’s adoption of an allocation method in the Barnsley Order is based on the facts and circumstances in that docket. ***
* * *
The evidence in this proceeding does not establish that there has been any double recovery of pipeline demand charges through the use of Respondent’s allocation factors. Furthermore, the evidence does not indicate that Respondent recovered more than 58% of the Texas Eastern contract and storage demand charges from its Tennessee service area in 1988. ***
*** There is no evidence, however, that the increased sales resulted in overcollection of the demand charges in Tennessee.
*** We distinguish the lack of any evidence of overcollection by Respondent of its total Texas Eastern demand charges from the overcollection by Respondent of Illinois ratepayers’ share of those demand charges.
*** This evidence, which was not relevant in the Barnsley case, represents a change in circumstances that justifies departure from the allocation methodology adopted in that Order.” (Emphasis added.) (Kaskaskia (Oct. 4, 1991), _ Ill. Commerce Comm’n Rep. at _ (ICC Nos. 89 — 0357, 89 — 0365 cons., slip op. at 14-16).)

Despite the last part of this order, we do not agree that there has been a change in allocation methodologies; rather, it is merely a true-up of expenses. United Cities argued that if it had recalculated its peak day demand estimates in 1988, the allocation factors would still have been the same. We do not see this as a matter of contention. As stated before, the allocation methodology adopted by United Cities in this docket and the Barnsley docket may still be used; however, as in the Barnsley docket, the costs recovered from Illinois customers are still subject to reconciliation under section 9 — 220.

C. Multijurisdictional Nature of United Cities

United Cities argues that because it must deal with two different jurisdictional methods of cost reconciliation, the Commission’s order will deprive it of its statutory right to recover costs. Specifically, United Cities alleges that the Commission’s order illegally “traps” the demand costs incurred by it, in violation of the Federal “filed rate” doctrine. The United States Supreme Court defined this doctrine as follows:

“[T]he ‘filed rate’ doctrine *** holds that interstate power rates filed with FERC or fixed by FERC must be given binding effect by state utility commissions determining intrastate rates.
* * *
*** The filed rate doctrine ensures that sellers of wholesale power governed by FERC can recover the costs incurred by their payment of just and reasonable FERC-set rates. When FERC sets a rate between a seller of power and a wholesaler-as-buyer, a State may not exercise its undoubted jurisdiction over retail sales to prevent the wholesaler-as-seller from recovering the costs of paying the FERC-approved rate. [Citation.] Such a ‘trapping’ of costs is prohibited.” Nantahala Power & Light Co. v. Thornburg (1986), 476 U.S. 953, 962-70, 90 L. Ed. 2d 943, 951-56, 106 S. Ct. 2349, 2354-59.

There are two problems with this argument. First, United Cities has failed to carry its burden of proving that underrecovery of costs cannot be obtained in prospective rate increases to its Tennessee customers. (See Stro-Wold Farms v. Finnell (1991), 211 Ill. App. 3d 113, 118, 569 N.E.2d 1156, 1159 (“[Plaintiffs suggested that law other than Illinois law might apply, but did not state what that other law was”); see also O’Brien v. Rautenbush (1956), 10 Ill. 2d 167, 169, 139 N.E.2d 222, 224 (“When a litigant relies upon the laws of another State as the basis for his cláim, he must plead and prove such laws, for the broad rule prevails that, in the absence of a showing to the contrary, such laws will be presumed to be the same as the laws of the forum”).) While Bobby Cline testified that the Tennessee demand charge allocations cannot be changed until the next rate case, no evidence reveals whether Tennessee would allow recovery of these costs after our decision in this case. Second, Illinois is not violating the filed rate doctrine. Section 9 — 220 and this decision do not deny United Cities recovery of FERC-set rates. (Indeed, one could argue that Tennessee is violating the filed rate doctrine for not allowing for adjustments in costs and revenues.) However Tennessee decides to govern utilities is of no moment for Illinois courts or the Commission when applying Illinois statutes.

D. Interest Due on Refund

United Cities argues that the Commission’s order to refund the $260,553 plus interest is erroneous. The Commission order on this point reads as follows:

“United Cities Gas Company shall refund the amount of $260,553 plus interest to its customers in the Harrisburg service area through the R4 factor of its PGA in accordance with the provisions of 83 Ill. Adm. Code 525.60.” (Kaskaskia (Oct. 4, 1991), _ Ill. Commerce Comm’n Rep. at _ (ICC Nos. 89— 0357, 89 — 0365 cons., slip op. at 18).)

United Cities’ argument on appeal suggests a misreading of the Commission’s order, interpreting the order as requiring a refund plus interest, as if there were interest on a judgment. We agree with the Attorney General, and read the order as directing the refund to be applied through the PGA clause as set forth in section 525.60 of title 83 of the Illinois Administrative Code (see 83 Ill. Adm. Code §525.60 (1991)) with interest to be applied consistent with the formula contained in that section.

IV. Conclusion

For the reasons set forth above, the decision of the Commission is affirmed.

Affirmed.

KNECHT, J., concurs.

JUSTICE LUND,

dissenting upon denial of rehearing:

This dissent follows United Cities’ petition for rehearing. My apologies to the esteemed members of this panel who continue to participate in the majority opinion. I do not intend to repeat the history of the proceedings as set forth so well in the majority opinion. I do not apologize to counsel for my belated dissent. As appellate judges, we are compelled to consider various subject matter in both criminal and civil cases. Utility law is a very specialized field, and we find ourselves relying upon the experts in that field who practice before us. It appears to me that, in rate regulation cases, the art of simplicity is nonexistent. With this preface, I warn the readers of this dissent that I wrote this as simply as I could, in hopes that even I can understand what this case is about. As a result, some of the terminology is mine.

We are concerned with allocation of “demand costs” between Illinois and Tennessee gas customers of United Cities. “Demand costs,” for purpose of this dissent, are costs incurred by United Cities over and above the normal unit of gas cost purchased by utilities.

In the present case, the “demand costs” were divided between Illinois customers and Tennessee customers, based upon an earlier pro rata use history. The pro rata expense allocation of demand costs was used in prior Illinois and Tennessee Commissions rate determinations. The present dispute arises as a result of a 1991 Commission determination that the Harrisburg, Illinois, “demand cost” allocations for 1988 and subsequent years must be based upon up-to-date actual use by Illinois and Tennessee customers. The current actual use evidence indicates that, since the original allocation compilation, Tennessee users’ percentage of total use has increased.

Problems arise because both Tennessee and Illinois utility regulators, separately, determine the rate United Cities can charge, and Illinois cannot require Tennessee to allow retroactive recovery for United Cities. The Commission has provided for a retroactive allocation of “demand cost,” providing for a smaller percentage of the “demand cost” expense be paid by the Illinois customers.

Without concurrent action by the Tennessee regulatory commission reflecting retroactive charges (surcharges) to Tennessee customers, United Cities will not recover all of the “demand cost” expense.

There is a strong temptation to say United Cities was in the best position to know of any unfair allocation costs and should stand the loss. United Cities was doing the customer billing for actual use and, in today’s computer-oriented world, the use by Tennessee customers and" Harrisburg, Illinois, customers should be easily ascertainable. Perhaps the monkey should be on United Cities’ back for not petitioning earlier for allocation adjustments before both regulatory commissions. This position sounds simple but, for reasons I will not discuss here, it is not.

After further consideration of this case, I conclude the Commission indulged in retroactive rate adjustment. The 1988 United Cities rates included an allocation of 42% of the “demand cost” to the Harrisburg customers. The rate billed was consistent with orders of the Commission. The Commission is now ordering United Cities to refund, based upon an allocation of 28% of the “demand costs” to Illinois users. Once established, a rate is effective unless stayed pending review, and refunds are not allowed because the rate is too high, nor are surcharges allowed because the rate is too low. This rule introduces stability. Citizens Utilities Co. v. Illinois Commerce Comm’n (1988), 124 Ill. 2d 195, 207, 529 N.E.2d 510, 515-16.

If the rule set forth in Citizens has been adopted in Tennessee, odds are that the loss to United Cities resulting from the Commission order will not be offset by surcharges in Tennessee.

As a result of my conclusion of retroactive rate making, I now dissent from the majority opinion.