author: JUSTICE WOODWARD

text:
    THE CITY OF GENEVA et al., Plaintiffs-Appellants, v. THE DU PAGE AIRPORT AUTHORITY et al., Defendants-Appellees.
    Second District
    No. 2—89—0303
    Opinion filed January 26,1990.

      Robert E Casey and Theodore G. Schuster, both of St. Charles, and Sheridan & Associates, of Wheaton (Gerald M. Sheridan, Jr., of counsel), for appellants.
    Mark E. Shure, of McDermott, Will & Emery, and Terry M. Grimm, of Winston & Strawn, both of Chicago (Steven H. Hoeft and John H. Brechin, of counsel), for appellees Du Page Airport Authority, Thomas H. Fawell, Sr., Ralph Smykal, Donald J. Figura, Thomas O. Marziani, Ronald A. DaRosa, John G. Morris, Larry L. Thompson, Roger C. Marquardt, Charles D. Berls, William G. Gebhardt, Jr., and Rudy Rau.
    No brief filed for other appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiffs, the City of Geneva, the City of Batavia, the City of St. Charles, and the Village of Wayne, filed a seven-count complaint seeking a declaratory judgment and quo warranto relief against the defendants, the Du Page Airport Authority (DAA), the Fox Valley Airport Authority (FVAA), and their commissioners and officers. Specifically, the plaintiffs sought to have Public Act 84 — 1473 held unconstitutional. Three counts of the complaint were withdrawn, and the case went to a bench trial on the four remaining counts of the amended complaint. After hearing evidence, the trial court entered a final judgment in favor of the defendants and against plaintiffs on all four counts of the complaint as amended. Plaintiffs appeal.

Plaintiffs raise the following issues on appeal: whether Public Act 84 — 1473 is unconstitutional as special legislation; whether Public Act 84 — 1473 is unconstitutional as a violation of the equal protection clause of the Illinois Constitution; whether Public Act 84 — 1473 automatically dissolved the FVAA; whether the general obligation bond issued by the DAA is void; whether sections of Public Act 84 — 1473 are void for vagueness; and whether the Village of Wayne has the right to approve all extensions of runways of the Du Page Airport pursuant to section 1731 of the Aviation Facilities Expansion and Improvement Act (49 U.S.C. §1731 (1982)). In addition, the defendants raise the issue whether plaintiffs have standing to challenge the constitutionality of Public Act 84 — 1473.

The Chicago metropolitan area regional airport system presently consists of the primary “hub” airports, O’Hare, Midway, and Meigs, owned by the City of Chicago, seven “reliever” airports, and the Joliet Park District Airport, a general aviation airport. There are also private airports in the six-county area. One reliever airport is located in each of the five “collar” counties, and two reliever airports are located in suburban Cook County. These seven airports handle the overflow from O’Hare, as well as regular commercial service! The four primary reliever airports of concern here are: Du Page, Palwaukee, Aurora, and Waukegan.

While serving similar functions, there are notable differences in these facilities. For example, at 4,000 feet, Du Page has the shortest runway of the four reliever airports. The shorter runway restricts the airport’s capacity and reduces its safety margin. Due to its shorter runway, the Federal Aviation Authority (FAA) has designated Du Page as a general utility airport, while the other three are designated transport airports. The distinction means that the Du Page Airport cannot handle aircraft as large as the other primary reliever airports.

Both the Du Page Airport and the Palwaukee Airport have less sophisticated instrument landing systems than the other two primary reliever airports. As a result, they have higher landing mínimums, which restrict their capacity and lower their safety margin.

As for the number of operations (takeoffs or landings) at each airport, in 1987, there were approximately 221,000 operations at Du Page, 218,000 at Palwaukee, 142,000 at Aurora, and 95,000 at Waukegan. In addition, in 1987, there were 526 aircraft based at Du Page; 279 aircraft based at Aurora; 460 based at Palwaukee; and 267 air-' craft based at Waukegan. The demand at Du Page and Palwaukee is higher than at the other primary reliever airports because they are closer to O’Hare Airport.

The business use of an airport is measured by itinerant (aircraft landing at Du Page Airport that did not originate there), as opposed to local, operations. During 1987, Du Page had 109,000 itinerant operations, Palwaukee had 125,000, Aurora had 47,000, and Waukegan had 36,000 itinerant operations.

The areas of comparison of greatest concern in this appeal are those of compatibility with the surrounding land use and opportunity for expansion. Certain land uses are more compatible with the operation of an airport than others. Agricultural use is the most compatible, while residential use is the least compatible. Incompatible land use limits the usefulness of an airport. The land uses surrounding the four primary reliever airports reflect four distinct stages of urban encroachment. Palwaukee Airport is surrounded by mixed-use development, including residential, commercial, and industrial. Waukegan Airport is on the verge of being surrounded by residential land use. Du Page Airport has residential and industrial land uses along its western and eastern boundaries, but open land to the south and north of the airport. The current flight patterns of the Du Page Airport are concentrated over the residential and industrial developments to the east and the west. The Aurora Airport is surrounded by farmland.

According to Roger Barcus, bureau chief of airport administration, Department of Transportation (DOT), an airport needs to acquire as much land as possible so that it can control the development around it. Each of the four primary reliever airports faces different problems in acquiring land. The Palwaukee Airport is hampered in growth by the price of the land surrounding it, some $150,000 or more an acre. The Waukegan Airport is surrounded by noise-sensitive residential use. The Aurora Airport has ample opportunity to expand since it is surrounded by farmland selling for approximately $6,000 per acre. Du Page has open space to the north and south. Due to the urban growth in the Du Page area and the rising costs of land acquisition, it is important for Du Page to act now in acquiring additional land.

Prior to 1974, the Du Page Airport was owned by Du Page County. When Du Page County announced plans to expand the airport, the FVAA was formed under “An Act in relation to airport authorities” (the Municipal Airport Authorities Act or Act) (Ill. Rev. Stat. 1975, ch. ISA, par. 68.1 et seq.) as a municipal airport authority. The original FVAA board consisted of seven commissioners, one each appointed by the municipalities of Geneva, St. Charles, Batavia, and West Chicago, and three appointed by the State legislators representing the legislative districts which encompassed the FVAA territory.

The FVAA was authorized under the Act to issue general obligation bonds and levy an airport tax within the limits set in the Act. By 1986, the income from field operations approximately covered the cost of operating the airport. Approximately 77% of the taxes levied for the corporate fund and the bond issue for purchase of the airport was collected from Kane County taxpayers in Batavia, Geneva, and St. Charles townships. By 1987, the FVAA had a property-tax base of approximately $732 million, which resulted in tax revenues of $250,000 per year, and a bonding limit of $5.49 million.

Airport improvements, on the other hand, are funded under program priorities established by the FAA on a national basis and the DOT on a State basis. The FAA has established the following priorities for the use of Federal funds: safety projects, preservations projects, standard projects, upgrade projects, and capacity projects. Under the DOT 1989-92 program, the distribution of Federal and State funds will be allotted as follows: safety and preservation, 32%; standards, 39%; upgrade, 8%; and capacity 31%.

The most preferred and common method of funding airport improvements is by the local sponsor applying for Federal grants. If a grant is approved, the improvements are not made until after the Federal and State funds are actually available. The most usual formula for Federal grants is: Federal, 90%; State, 5%; and local sponsor, 5%.

Federal funds may also be obtained through reimbursement. The local sponsor spends the money first and seeks FAA reimbursement later. A letter of intent can be obtained from the FAA for future Federal reimbursement for land acquisition or for construction of runways. However, issuance of a letter of intent is not a guarantee of reimbursement or that it will be reimbursed within any specific period of time. Specific steps are required to qualify for a Federal grant or reimbursement, namely: the local sponsor must complete and obtain approval of an “Airport Layout Plan” (ALP) by both DOT and the FAA; after ALP approval, an environmental impact assessment must be performed relating to projects planned in the ALP; and no Federal funds will be disbursed until both the above steps have been completed. An ALP shows the airport as it is now and as it is planned at some future date, usually 20 years in the future. According to Roger Barcus, the FVAA diligently attempted to get a new ALP approved by DOT and the FAA from 1981-86, but it was never approved. The FVAA never failed to apply for any grant of money.

In September 1985, the Act was amended by Public Act 84 — 994, which authorized the chairman of the Du Page County Board to appoint a majority of the FVAA commissioners. Public Act 84 — 994 applied to an airport authority located in a county which had a population in excess of 600,000 and less than 3 million. At that time, only the FVAA and Du Page County met that population classification.

In January 1987, the Act was again amended, by Public Act 84— 1473, which created a metropolitan airport authority in every county which had a population in excess of 600,000 and less than 3 million and was located contiguous to Cook County. Only Du Page County currently falls within those classifications. Under Public Act 84 — 1473, the FVAA was dissolved, and DAA was formed as a metropolitan airport authority; DAA assumed control of the Du Page Airport. The property-tax base of the DAA, which includes all of Du Page County, is more than $10 billion and is 13 times larger than the FVAA’s tax base. It has a bond debt limit of more than $83 million. Eight of the nine commissioners of the DAA are appointed by the chairman of the Du Page County Board. Also, the DAA was empowered to levy an airport tax of .075% of assessed valuation and issue general obligation bonds of .75% of assessed valuation without referendum. Ill. Rev. Stat. 1987, ch. 151/2, pars. 68.2b, 68.2g, 68.13, 68.14a, 68.14e.

From the testimony at trial, it appears that the impetus to form the DAA was the failure of the FVAA to move quickly enough to acquire land for expansion of the airport facilities. In the case of the Palwaukee Airport, two local municipalities refused to pay their share of the cost of purchasing the private airport which was then for sale. Rather than lose Palwaukee’s reliever capacity, the State and the FAA subsidized the local owner’s share and paid approximately $40 million to acquire the airport.

In the case of the FVAA, in 1979, the FVAA hired Crawford, Murphy & Tilly, Inc. (CMT), an engineering firm, to prepare the ALP. The FAA, the State, and the CMT recommended to the FVAA that it acquire a corridor of land south from the airport to Fermi Lab. The plan submitted by the FVAA to the FAA in 1986 called for some land to be acquired but none south of Roosevelt Road. Moreover, the FVAA would not proceed with any land acquisition or construction until it received a Federal grant. Because of the steadily rising land prices, the State considered it most economical to acquire the land as soon as possible and, thus, avert the Palwaukee situation (land around Palwaukee is now valued at $150,000 an acre).

In holding that Public Act 84 — 1473 was constitutional, the trial court noted that there was no question that the legislation was designed solely for the Du Page Airport, but that, in and of itself, did not amount to the special legislation prohibited by the Illinois Constitution. The trial judge stated:

“I believe there is sufficient basis in the record for the legislation to withstand the constitutional challenge.
Some of the reasons for the differential treatment include both the history that airports in Illinois are different, have their own problems and have received different treatment.
Specifically, of the four primary reliever airports for O’Hare, the record shows that the Du Page Airport is unique. It is unique for various reasons, one being the runway length.
For that reason alone, Du Page, by the FAA, is classified a utility airport and others are classified transport airports.
But I think one of the most important reasons for differential treatment are the land uses surrounding the four reliever airports.
Each represents a different stage of urban development, each reflect[s] different market values accordingly, each offers different opportunities for expansion; I think those factors, along with the need, as expressed in the record, for the implementation of the Airport Layout Plan here in Du Page with a priority rather than with a slower pace.
Basically, I think it has been shown that the Du Page Airport needs and its present opportunity are unlike the needs and opportunities present at the other reliever airports.”

This appeal followed.

Since plaintiffs have challenged the constitutionality of Public Act 84 — 1473, we will briefly review the standards appropriate to deciding constitutional challenges to statutory enactments before delving into the merits of plaintiffs’ argument.

Statutes are presumed to be constitutional, and one who challenges a provision has the burden of establishing its invalidity. (Pre-School Owners Association v. Department of Children & Family Services (1988), 119 Ill. 2d 268, 275.) Reasonable doubts must be resolved in favor of upholding the validity of the legislation establishing a classification. (In re Belmont Fire Protection District (1986), 111 Ill. 2d 373, 380.) When a classification under a statute is called into question, if any state of facts can reasonably be conceived to sustain the classification, the existence of that state of facts at the time the statute was enacted must be presumed. (Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 369.) It is not required that the classification be accurate, logical, harmonious, or scientific, so long as it is not arbitrary and will accomplish the legislative purpose. (People ex rel. Curren v. Wood (1945), 391 Ill. 237, 255.) Finally, although a trial court’s findings are always subject to review, especially when the evidence is conflicting, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. The reviewing court may not overturn a judgment merely because it might disagree with it or might have reached a different conclusion. Thus, the reviewing court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110.) We now turn to the merits of plaintiffs’ case.

Plaintiffs contend, first, that Public Act 84 — 1473 is unconstitutional as special legislation and violative of the equal protection clause.

A “special” law confers some special right, privilege, or immunity or imposes some particular burden upon some portion of the people of the State but less than all. (In re Belmont Fire Protection District, 111 Ill. 2d at 379.) The purpose of the special legislation prohibition in the constitution was to prevent the enlargement of the rights of one or more persons and the impairment of, or discrimination against, the rights of others. (Gaca v. City of Chicago (1952), 411 Ill. 146, 149.) However, legislative classification is not forbidden, since perfect uniformity of the treatment of all persons is neither practical nor desirable. In re Belmont Fire Protection District, 111 Ill. 2d at 379.

Denial of equal protection occurs when the government withholds from a person or class of persons a right, benefit, or privilege without a reasonable basis. Legislation which confers a benefit on one class and denies the same to another may be attacked both as special legislation and as a denial of equal protection, but under either ground for challenge, it is the duty of the courts to decide if the classification is reasonable. (Chicago National League Ball Club, Inc., 108 Ill. 2d at 367-68.) Though the constitutional protections invoked are not identical, a claim that the special-legislation provision has been violated is generally judged by the same standard that is used in considering a claim that equal protection has been denied. 108 Ill. 2d at 368.

In In re Belmont Fire Protection District, our supreme court stated as follows:

“In order for a legislative classification by population to withstand constitutional scrutiny, it cannot be arbitrary. The legislature cannot create a class through the medium of an arbitrary statutory declaration in order that the class may be the recipient of special and exclusive legislative favors. [Citation.] To render a statutory classification valid, the classification must be based upon a rational difference of situation or condition found to exist in the persons or objects upon which the classification rests. [Citations.]
In considering the special-legislation proscription of our constitution, in addition to a reasonable basis for the classification, the classification must also bear a rational and proper relation to the evil to be remedied and the purpose to be attained by the legislation. [Citations.] Thus there is a two-prong test.” (Emphasis added.) 111 Ill. 2d at 379-80.

Plaintiffs contend that the proofs at trial did not show any rational connection between the populations of the six metropolitan Chicago counties and any need for a countywide airport with authority to issue bonds and tax for airport purposes without referendum. In People ex rel. Curren v. Wood (1945), 391 Ill. 237, the Act was attacked, inter alia, as unconstitutional special legislation because it classified airport authorities by population and location. Our supreme court disagreed, stating that “courts have frequently recognized that traffic and transportation conditions in larger cities require special treatment and afford a reasonable basis for classification.” 391 Ill. at 252.

Nevertheless, plaintiffs maintain that there is nothing unique about the need for extensive funds to acquire land for reliever airports and nothing unique about the way the money is obtained, i.e., Federal grants. Plaintiffs point out that since the DAA took over for the FVAA, the tax levies have increased enormously (6,300% in 1987 and 11,100% in 1988) and argue that, had a referendum been necessary, it is unlikely that the citizenry would have approved such bonds. Moreover, this money is being used to acquire land which will be used at least initially for expressways and shopping centers. Finally, the population of Du Page County rose in the 1970’s and early 1980’s; yet the number of airport operations decreased substantially and has not again achieved the peak reached in 1973.

The trial court here found that there was no question that Public Act 84 — 1473 was designed solely for the Du Page County Airport. However, the fact that legislation applies to a single place does not render it unconstitutional. (Du Bois v. Gibbons (1954), 2 Ill. 2d 392, 399.) When a claim of unconstitutional special legislation or denial of equal protection is raised, the threshold inquiry is whether some entity situated similarly to those affected by the statute has been excluded. Chicago National League Ball Club, Inc., 108 Ill. 2d at 367-68.

The defendants argue that no other airport, airport authority, or county is similarly situated to the DAA, the Du Page Airport or Du Page County. The plaintiffs, however, admit that the needs of the reliever airports are similar but differ in degree, particularly in the area of land acquisition.

The chief distinctions between the Du Page Airport and the other reliever airports, particularly Palwaukee Airport, are that Du Page has the shortest runway length and, as such, the only reliever airport designated as a utility airport rather than a transport airport; it has slightly more operations than the others; there are more aircraft based at Du Page Airport; and although both Aurora and Du Page Airports have an opportunity for expansion, it is necessary that Du Page’s acquisition of land take place at once, due to the escalating prices of land in Du Page County. Plaintiffs argue that none of these differences justifies the “Du Page exception.”

Legislation which affects only one similarly situated entity is constitutional so long as there is a rational justification for the legislative focus and the classifications used to focus the legislation are reasonably related to that justification. (In re Belmont Fire Protection District, 111 Ill. 2d at 380.) We agree with the defendants that the plaintiffs failed to prove that the statute was enacted only for reasons totally unrelated to the pursuit of a legitimate State goal. See Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230.

The separate treatment of the Du Page Airport is justified given its role as the busiest reliever airport and its opportunity for expansion. There was testimony at trial that a $1.7 million shortfall in reliever operations capacity was anticipated for northeastern Illinois by the year 2000, and, thus, the State’s first priority is to improve existing reliever airports. The enhanced tax base provides the additional funds for such improvements. The evidence reflects that the FVAA was unwilling to engage in land acquisition unless it received Federal money. By waiting, however, there was testimony to the effect that the land values were escalating, and the land south of the Du Page Airport could become more expensive. Upon its formation, the DAA promptly implemented the land acquisition and engineering necessary to improve the airport without the necessity of the Federal grants. While perhaps not the best or most reasonable solution to the problem, we cannot say that the creation of the DAA was palpably arbitrary. See People ex rel. Curren v. Wood (1945), 391 Ill. 237.

Plaintiffs further argue that the population and location classifications of Public Act 84 — 1473 are unrelated to the reason why the State needed to protect and improve the Du Page Airport. However, the legislature has frequently used population and location classifications to focus legislation on specific problems. (See, e.g., People ex rel. Kutner v. Cullerton (1974), 58 Ill. 2d 266 (provision allowing counties with more than 200,000 population to classify real estate for taxation); People ex rel. Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 Ill. 2d 210 (race track located within 100 miles of city with 1 million population or in county of 500,000 population taxed at a different rate than other race tracks in the State); Bridgewater v. Hotz (1972), 51 Ill. 2d 103 (statute providing for the nomination and election of county board members in counties having a population of 3,000,000 or less).) “Before a court can interfere with the legislative judgment in [a] case, it must be able to say that there is no fair reason for the law which would not require with equal force its extension to other cities of smaller population which are not affected.” (Gaca, 411 Ill. at 149.) It is the plaintiff’s burden to show that a population classification is arbitrary, not the defendant’s burden to show the classification is reasonable. Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 683.

In Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, our supreme court upheld a population classification as a means of identifying a number of population-related factors which merited special treatment for Wrigley Field. While the challenged statute did not name Wrigley Field as its object, the court concluded that Wrigley Field was the focal point. After considering a number of population-related factors, such as density, road congestion, and adjoining land uses, the court upheld the statute even though none of the factors were identified in the statute. Likewise, in People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572, the supreme court upheld a statute which authorized only the “collar” counties around Cook County to build sewage facilities and to issue bonds to pay for the facilities. The statute did not name the counties, but the legislature limited the application of the statute to those counties adjoining a county with a population in excess of 1 million. The court took judicial notice of the overflow of business and population from Cook County in the collar counties and upheld the statute because of the “unique population and territorial combination giving rise to sewage and pollution problems of unusual magnitude and urgency.” (21 Ill. 2d at 579.) Again, the population factors which the court found to justify the statutory population classifications were not listed in the statute.

We note that there was conflicting testimony as to whether there was any correlation between airport demand and population. In deciding that the statute was constitutional, the trial court implicitly found that there was a correlation between the two, and since there was evidence to the effect at trial, we -will not disturb that finding.

Plaintiffs rely on In re Belmont Fire Protection District (111 Ill. 2d 373). In that case, the trial court held section 19a of “An Act in relation to fire protection districts” (Ill. Rev. Stat., 1984 Supp., ch. 1271/2, par. 38.2a(a)) to be unconstitutional. Section 19a(a) provided that in any county having a population of 600,000 but less than 1 million, fire-protection services could be consolidated into a single fire-protection district. In upholding the finding of unconstitutionality, the court determined that the countywide population classification bore no rational relationship to the purpose of the Act and the evil it sought to remedy, i.e., having multiple fire-protection districts serving one municipality. Although the court was urged to take judicial notice of the unique geographic, demographic, and political circumstances arising from the phenomenal growth and development of Du Page County, the court observed that the classification in section 19a(a) was based on population, not urbanization or density of population. Therefore, the court concluded, if there is an evil in having a municipality experiencing rapid growth served by more than one fire-protection district, then it would rationally follow that the statute in question should be based on either the population, urbanization, or density of the municipality involved, not the population of the county in which the municipality lies, since many other small towns in other counties are also experiencing rapid growth. In re Belmont Fire Protection District, 111 Ill. 2d at 385.

In the case before us, however, as previously pointed out, there is evidence that the Du Page Airport is different from other airports and that its needs and opportunities are unique and unlike the needs and opportunities facing other reliever airports. Thus, In re Belmont Fire Protection District is distinguishable from the case at bar.

We conclude, therefore, that Public Act 84 — 1473 is neither special legislation, nor violative of the equal-protection clause of our State constitution.

Next, plaintiffs contend that the FVAA was not automatically dissolved by Public Act 84 — 1473.

Section 2.7(b) of the Act (Ill. Rev. Stat. 1987, ch. lSVz, par. 68.2g(b)) provides as follows:

“(b) If all of the airport facilities of an existing Airport Authority are situated within the corporate limits of a county in which a Metropolitan Airport Authority is established, the existing Airport Authority shall be dissolved upon the establishment of the Metropolitan Airport Authority.”

Count II of plaintiffs’ complaint was a quo warranto action which alleged that not all the “airport facilities” of the Du Page Airport were located in Du Page County when the DAA took control of the airport and, therefore, FVAA was not automatically dissolved when the DAA was created.

The Act provides the following definitions:

“ ‘Airport’ means any locality, either land or water, which is used or designed for the landing and taking off of aircraft, or for the location of runways, landing fields, airdromes, hangars, buildings, structures, airport roadways and other facilities.”
“ ‘Facilities’ means and includes real estate and all forms of tangible and intangible personal property and services used or useful as an aid, or constituting an advantage or convenience to, the safe landing, taking off and navigation of aircraft, or the safe and efficient operation or maintenance of a public airport.” Ill. Rev. Stat. 1987, ch. IhVz, par. 68.1.

Plaintiffs conclude that because markers and the clear zone on the west end of runway 10/28 extend into Kane County, not all Du Page Airport facilities are located in Du Page County.

We agree with plaintiffs that if the legislative intent can be determined from the plain language of the statute, it must prevail. (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) However, it is equally as true that courts will avoid a construction of a statute which would render any portion of it meaningless or void. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 362-63.) Throughout this case, plaintiffs have taken the position that the FVAA was dissolved by Public Act 84 — 1473. Yet, as defendants point out, if the DAA could not operate the Du Page Airport, then the DAA has no function, and the statute would be meaningless.

Moreover, the use of the term “airport facilities” of an existing airport indicates that only those facilities actually owned by the FVAA are material to the issue of dissolution. The clear zones are airspace over which the United States has sovereignty. (See 49 U.S.C. §§1304, 1348 (1982).) The markers are owned by the FAA, not the FVAA.

We conclude that the trial court correctly determined that the FVAA was dissolved by Public Act 84 — 1473.

Next, plaintiffs contend that, in the event this court determines Public Act 84 — 1473 to be unconstitutional, then the general obligation bond issued by the DAA is void. As we have determined that Public Act 84 — 1473 is constitutional, there is no merit to this argument.

Next, plaintiffs contend that certain portions of Public Act 84— 1473 are so vague and uncertain as to violate the due-process clause of the 1970 Illinois Constitution.

Under Public Act 84 — 1473, a township located outside of Du Page County but which was part of the FVAA is permitted to disconnect from the authority. (Ill. Rev. Stat. 1987, ch. lSVa, par. 68.17a.) Where a township chooses to disconnect, the DAA pays to the township a sum not in excess of the township’s “investment.” Ill. Rev. Stat. 1987, ch. 15V2, par. 68.17b.

Plaintiffs argue that these provisions are incomprehensible because no township has ever had a financial interest in the DAA, and because the payback provision refers to a court proceeding in which the airport, its improvements, and facilities, the amount expended by the DAA or the FVAA, and the amount of bonded indebtedness owned by the DAA or the FVAA are described.

Plaintiffs also point out that in the event of a disconnection, section 17.1 of the Act (Ill. Rev. Stat. 1987, ch. lSVa, par. 68.17a) provides that the annual tax levy be discontinued by referendum. Yet, plaintiffs argue, the townships have no obligation for the debts of the airport authority. It is the property owners whose real estate is subject to the bond issue levy ordinances. Plaintiffs assert that the “disconnection” provisions do not expressly or implicitly provide for the removal of the liens of the bond issue levies, and, therefore, the taxpayers of a “disconnected” township will be deprived of due process of law if the “disconnection” provision is exercised.

Where a statute is so uncertain that people of ordinary intelligence must guess at its meaning, the statute denies due process. (Krebs v. Thompson (1944), 387 Ill. 471, 477.) An act is void if the language of the statute, on its face, appears to have a meaning which is impossible to give a precise or intelligent application in the circumstances under which it is intended to operate. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 402.

Defendants argue that because plaintiffs failed to raise this argument in the trial court, it is waived. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486.) Moreover, we perceive that plaintiff’s argument is not directed at the “vagueness” of the statute as much as at the fact that plaintiffs believe the taxpayers, not the townships, should receive the benefit of disconnection. A statute is sufficiently specific where its terms serve as an adequate guide for those to whom it applies. (People v. Davis (1982), 106 Ill. App. 3d 260, 264.) Even if plaintiffs’ argument was not waived, we would agree with the defendants that fair reading of the statute obviously calls for the payback to the township of all the funds invested by the citizens of that township. Therefore, the above sections of Public Act 84 — 1473 are not unconstitutionally vague.

Finally, plaintiffs contend that pursuant to section 1731 of the Aviation Facilities Expansion and Improvement Act (49 U.S.C. §1731 (1982)), the Village of Wayne must approve any plan to extend runways using Federal funds for that purpose.

Section 1731 provides as follows:

“Notwithstanding any other provision of the Airport and Airway Improvement Act of 1982 [49 App. U.S.C. 2201 et seq.}, no airport development project under such Act involving the construction or extension of any runway may be approved by the Secretary at any general aviation airport *** located astride a line separating two counties within a single State if, before the submission of such project to the Secretary, such project has not been approved by the governing body of any village incorporated under the laws of that State which is located entirely within five miles of the nearest boundary of such airport.” (49 U.S.C. §1731 (1982).)

It is not disputed that the DAA intends to extend runways using Federal funds and has not and does not intend to obtain the consent of the Village of Wayne.

In order for section 1731 to apply to the Village of Wayne, the Du Page Airport must lie “astride” a county line. “Astride” means “placed or lying on both sides of.” (Webster’s Third New International Dictionary 135 (1986).) The evidence is clear and the trial court so found that the Du Page Airport is located entirely within Du Page County. Therefore, section 1731 does not apply to the Village of Wayne.

The defendants raise the argument that the plaintiffs lack standing to challenge the constitutionality of the Act. Deciding the case as we do, we need not reach that issue.

The judgment of the circuit court is affirmed.

Affirmed.

REINHARD and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    JOHN PARRISH, Plaintiff-Appellant, v. GLEN ELLYN SAVINGS & LOAN ASSOCIATION, Defendant-Appellee.
    Second District
    No. 2—89—0480
    Opinion filed January 30,1990.

      Allen S. Gerrard, of Gerrard & Gerrard, and Robert P. Sheridan, of Robert A. Clifford & Associates, both of Chicago, for appellant.
    David I. Herbst and Jodi I. Firfer, both of Portes, Sharp, Herbst & Kravets, Ltd., of Chicago, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, John Parrish, filed a complaint for declaratory judgment in the circuit court of Du Page County pursuant to section 2 — 701 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701) against defendant, Glen Ellyn Savings and Loan Association (Glen Ellyn), seeking to declare void a deficiency judgment previously entered by default against him. Both parties subsequently moved for summary judgment pursuant to section 2 — 1005 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). The trial court denied Parrish’s motion for summary judgment and entered judgment in favor of Glen Ellyn. Parrish appeals claiming that the judgment entered against him in the prior proceedings was void because it represented relief different from that requested in the complaint and because he was not given due notice of the new relief sought. We reverse and remand.

The transaction underlying the litigation between these parties took place on September 2, 1980, when Glen Ellyn loaned $150,000 to Glenview State Bank (Glenview), as trustee, pursuant to a note undertaken by Glenview. The note was also signed by Michael A. Penzato, who personally guaranteed payment of the note. To secure payment of the note, Glenview executed a mortgage on a parcel of real estate it owned as trustee under a trust designated No. 2118. Parrish was not a signatory of the note or the mortgage; however, in a separate document, he guaranteed “prompt payment when due and at all times thereafter of any and all existing and future indebtedness and liability of every kind, nature, and character” from Penzato to Glen Ellyn.

At some point, according to Glen Ellyn, payment on the note fell into arrears, and in May 1982 Glen Ellyn, as mortgagee, brought an action in the circuit court of Du Page County to foreclose on the mortgage. Count I of the foreclosure action named as defendants: Glenview; Penzato; Mark Lovejoy and Associates, Inc.; unknown beneficiaries of trust Nos. 2118 and 2669; unknown owners and nonrecord claimants; and Parrish. The prayer in count I asked:

“1. For foreclosure of said mortgage.
2. For a Judicial Sale of the security property.
3. For the appointment of a receiver after sale in the event of a deficiency.
4. For the appointment of a receiver pendente lite.
5. For a judicial determination of the rights, intents, and priorities of the respective parties.
6. For such other relief as in equity may be just.”

Count II of the foreclosure action named only Penzato as a defendant and alleged that Penzato had personally guaranteed payment of the debt owed to Glen Ellyn. Count II prayed for a deficiency judgment to be entered against Penzato, but it did not request that a deficiency judgment be entered against any other party.

Glen Ellyn’s amended complaint was filed on August 2, 1982, and it added a third count to the foreclosure action seeking injunctive relief against Penzato and Parrish. The first paragraph of count III alleged that both Parrish and Penzato had personally guaranteed payment of the debt owed to Glen Ellyn. Paragraph four alleged:

“That, as a result of the diminution in the value of the real estate subject to the mortgage of [Glen Ellyn], it is highly probable that at any judicial sale the said real estate will be sold for [an] amount which is substantially less than the indebtedness due [Glen Ellyn] (and a deficiency judgment will be rendered against the guarantors on the aforesaid note).”

Paragraph eight alleged:

“That, based upon information and belief, both [Parrish and Penzato] are presently attempting to sell, mortgage, or otherwise encumber their aforesaid assets for the purpose of depriving [Glen Ellyn] of any recovery against them in the event that a deficiency judgment is rendered under either Count I or Count II hereof.”

Count III concluded by praying for an injunction against Parrish and Penzato to prevent them from transferring or encumbering their assets.

An appearance was entered on behalf of Parrish on August 25, 1982. Parrish failed to file an answer to the complaint for foreclosure, and an order of default was entered against him on November 1, 1982. A judgment of foreclosure issued January 31, 1983. On May 11, 1983, an order approving the sheriff’s sale was entered which provided for a deficiency judgment against Parrish and Penzato in the amount of $63,326.06. In August 1983, an alias citation to discover assets was served on Parrish, and, shortly thereafter, Parrish appeared in court with his attorney and was directed to produce certain documents. Glen Ellyn initiated garnishment proceedings and succeeded in obtaining approximately $35,000 from Parrish toward payment of the deficiency judgment.

On August 25, 1983, Parrish filed an action seeking specific performance from Glenview on an alleged agreement by Glenview to indemnify Parrish and hold him harmless as to the deficiency judgment. The record does not reveal the status of this complaint.

On September 24, 1987, Parrish filed the complaint for declaratory judgment which is the subject of this appeal. The complaint named Glen Ellyn as the defendant and asked the trial court to dedare void the deficiency judgment entered by default against Parrish in the prior proceedings. The motion alleged that Parrish was not a guarantor of the mortgage or the note. It further alleged that the foreclosure action did not pray for a deficiency judgment against him and that he was not given proper notice that such relief would be sought by Glen Ellyn.

Both parties, contending that no material facts were at issue, filed motions requesting that summary judgment be entered in their favor. The trial court denied Parrish’s motion for summary judgment on February 28, 1989, and granted Glen Ellyn’s motion on April 13, 1989. Parrish timely appeals from the order granting Glen Ellyn’s motion for summary judgment.

A motion for summary judgment should be granted if the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.' (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The evidence is to be viewed in the light most favorable to the nonmovant in determining whether a genuine issue of material fact exists; if there are no such facts in dispute, inferences may be drawn from undisputed facts to determine if the movant is entitled to judgment as a matter of law. Estate of Dompke v. Dompke (1989), 186 Ill. App. 3d 930, 933.

At issue at bar is whether the complaint Glen Ellyn filed in the foreclosure action sufficiently alerted Parrish to the fact that a deficiency judgment would be sought against him. Supreme Court Rule 105 (107 Ill. 2d R. 105) requires that notice be given to a party in default if new relief, or relief greater than that originally requested, is sought. Here, Glen Ellyn does not contend that it gave Parrish the notice required by Supreme Court Rule 105. As a result, the only issue here is whether such notice was required or, in other words, whether the deficiency judgment entered against Parrish was new or additional relief as opposed to the relief originally sought in Glen Ellyn’s complaint for foreclosure.

Parrish correctly notes that nowhere in the prayer or body of Glen Ellyn’s complaint for foreclosure can there be found a request that a deficiency judgment be entered against Parrish. This court addressed similar circumstances in Palatine Savings & Loan Association v. National Bank & Trust Co. (1980), 80 Ill. App. 3d 437. There, a complaint for foreclosure prayed for a deficiency judgment to be entered “against such of the defendants as may be found personally liable.” (Palatine, 80 Ill. App. 3d at 438.) We found that the complaint at issue in Palatine did not sufficiently specify that a deficiency judgment would be sought against the defendant there, and, thus, notice was required pursuant to Supreme Court Rule 105 if such relief was to be-awarded. Palatine, 80 Ill. App. 3d at 440.

Here, Glen Ellyn’s complaint for foreclosure not only failed to specify Parrish as a party against whom a deficiency judgment would be sought, but it sought a deficiency judgment against a different party, Penzato. Such a complaint is at least as insufficient as that in Palatine and, indeed, possibly more so.

Glen Ellyn argues that Palatine is distinguishable from the case at bar and cites several factors which it claims should have put Parrish on notice that a deficiency judgment would be sought against him. First, Glen Ellyn notes that paragraph four of count III alleges that “it is highly probable that at any judicial sale the said real estate will be sold for [an] amount which is substantially less than the indebtedness due [Glen Ellyn] (and a deficiency judgment will be rendered against the guarantors on the aforesaid note).” (Emphasis added.) Glen Ellyn argues that unlike the complaint in Palatine, the complaint for foreclosure at issue here identified Parrish and Penzato as the “guarantors” of the note, and the guaranty executed by Parrish was attached and referenced as an exhibit.

A cursory examination of Parrish’s guaranty, however, reveals that he did not guaranty payment of the note per se; instead, he guaranteed payment of obligations owed by Penzato to Glen Ellyn. Even if Penzato was primarily liable for the note, the same cannot be said of Parrish, and he cannot have been expected to anticipate that a deficiency judgment would be entered against him in the foreclosure proceedings. See Farmer City State Bank v. Champaign National Bank (1985), 138 Ill. App. 3d 847, 851; Emerson v. LaSalle National Bank (1976), 40 Ill. App. 3d 794, 799 (indicating that a deficiency judgment may not be entered against a guarantor in foreclosure proceedings).

Second, Glen Ellyn claims that count III, which sought to enjoin . Parrish from certain activities, should have alerted Parrish to the possibility that a deficiency judgment would be sought against him. Specifically, paragraph eight of count III alleged that Parrish and Penzato were attempting to encumber their assets “for the purpose of depriving [Glen Ellyn] of any recovery against them in the event that a deficiency judgment is rendered under either Count I or Count II.” (Emphasis added.) Thus, according to Glen Ellyn, Parrish should have inferred that a deficiency judgment was being sought against him.

We do not accept Glen Ellyn’s argument. Though it is not unreasonable for Glen Ellyn to expect Parrish to have thoroughly read each count of the complaint, the result of this cross-referenced reading of the entire complaint would still not sufficiently alert Parrish to the fact that a deficiency judgment would be sought against him in the foreclosure proceedings. It is of little help to Glen Ellyn that count III of the complaint referred to the possible consequence of a deficiency judgment being granted under counts I or II because the complaint did not request a deficiency judgment against Parrish in either of those counts. The mere reference to an undefined deficiency judgment in count III does not create a request for a deficiency judgment against Parrish in counts I or II. Furthermore, Glen Ellyn’s attempt to enjoin Parrish from encumbering his assets does not necessarily imply that a deficiency judgment was being sought against him in the foreclosure proceedings, as opposed to separate proceedings on the guaranty. See Emerson, 40 Ill. App. 3d at 799.

•4 Therefore, we conclude that Glen Ellyn’s complaint in the foreclosure proceedings did not request that a deficiency judgment be entered against Parrish. In the context of a default judgment, such new or additional relief could only have been proper had Parrish been given the requisite notice pursuant to Supreme Court Rule 105. Since no such notice was given, the deficiency judgment entered against Parrish in the foreclosure proceeding was void. Palatine, 80 Ill. App. 3d at 440.

Glen Ellyn argues that, even if the deficiency judgment entered against Parrish was void, Parrish retroactively validated the prior order because he appeared in subsequent proceedings without contesting the validity of the deficiency judgment. In support of this argument, Glen Ellyn refers us to the jurisdictional doctrine of revesting as explained by our supreme court in Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46. Glen Ellyn does not cite any case, however, in which the doctrine of revesting has been applied retroactively to validate the entry of a void judgment. In any event, the doctrine of re-vesting would not validate a void order entered before revesting occurs. (Spears v. Spears (1977), 52 Ill. App. 3d 695, 700.) This issue is different from the question of whether Parrish could have waived recovery of any funds Glen Ellyn obtained through garnishment if Parrish appeared at the garnishment proceedings and did not question the validity of the deficiency judgment. The record does not reflect whether this is actually the case, and neither party addressed the issue at the trial court or on appeal; it was not necessary to do so in the context of Glen Ellyn’s motion for summary judgment. Accordingly, we express no opinion as to the resolution of this question.

Finally, Glen Ellyn argues that Parrish cannot prevail here because his complaint did not demonstrate that he exercised due diligence in resisting the foreclosure proceedings or that he has a meritorious defense thereto as required by section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). A judgment that is void, as opposed to voidable, may be attacked at any time, either directly or collaterally. (People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 71.) Moreover, the restrictions of section 2 — 1401 do not apply to or affect the right to relief from a void order. (DiNardo v. Lamela (1989), 183 Ill. App. 3d 1098, 1101.) Accordingly, we reject Glen Ellyn’s contention that Parrish’s complaint for declaratory relief was insufficient because it did not comply with the requirements of section 2-1401.

We conclude that the deficiency judgment entered by default against Parrish in the foreclosure proceedings was void and, thus, reverse the trial court’s order granting summary judgment in favor of Glen Ellyn and remand for further proceedings.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE DUNN

text:
    DAVANE, INC., Plaintiff-Appellee, v. IVAN H. MONGREIG et al., Defendants-Appellants.
    Second District
    No. 2—89—0227
    Opinion filed January 31,1990.

      Joseph E. Fitzgerald, of Hinsdale, for appellants.
    Walter J. O’Brien II, Angela Imbierowicz, and Madonna Muscarello, all of O’Brien & Associates, P.C., of Oak Brook Terrace, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants, Ivan and Geraldine Mongreig (Mongreigs), appeal from an order of the circuit court of Du Page County which granted the request of plaintiff, Davane, Inc. (Davane), for specific performance of an alleged contract for the sale of real estate. The Mongreigs argue that no contract existed because they withdrew prior to ratification by the principal, Davane, and because the evidence indicates their attorney did not approve it and the contract was contingent upon attorney approval. We reverse.

The following facts were brought out at trial. The Mongreigs own a 3x/2-acre parcel of property in Burr Ridge upon which a single-family residence is located. On January 20, 1987, Joan Smythe, a realtor who worked for Re/Max Elite in Hinsdale, visited the Mongreigs’ home. Mrs. Mongreig told her the property was for sale. Smythe discussed the property with John Damore, another real estate broker in her office. Damore told Smythe he knew a builder named David Gasaway who might be interested in buying the land. Damore then contacted Gasaway.

Gasaway met Damore and Smythe at a tavern in Willow Springs on the evening of January 22, 1987, in order to discuss the Mongreigs’ property. That night, Gasaway signed a Du Page Board of Realtors standard residential real estate contract in which the listed buyer, Davane, offered to purchase the property for $265,000. Gasaway used the name Frank Klotz, his deceased grandfather, when he signed the offer, because he did not wish competing builders to know that the Gasaway family was interested in the property.

Smythe and Damore took the offer to the Mongreigs immediately thereafter. The Mongreigs refused to consider the offer, stating that they wanted $315,000 for the property and had recently rejected a $305,000 offer. Smythe and Damore then returned to the tavern and told Gasaway he would have to increase the offer. Gasaway then signed another standard residential real estate contract which listed Davane as the buyer and offered $306,000 for the land. Once again, Gasaway used the name Frank Klotz when he signed the offer.

The next morning, Smythe and Damore returned to the Mongreigs’ home and presented the offer. The Mongreigs stated that they still wanted $315,000. Damore stated that if the Mongreigs wished to get that amount, they would need to show their good faith by signing a contract for $315,000 which he could take to the buyer. When the Mongreigs asked what Davane was, Damore stated it was a builder in Lemont. The Mongreigs expressed reluctance to sign, stating that they wanted their attorney to see the contract first. Mr. Mongreig then called his attorney, Robert Grossman, who was not able to see the Mongreigs until Monday, January 26, three days away.

Damore then told the Mongreigs he could put an attorney-approval clause in the contract. Damore stated that what he had in mind was a standard 304 rider issued by the Du Page Board of Realtors. This rider states that the buyer or seller’s attorney has five days to approve or disapprove of the contractual terms, except for the price, closing date, or possession date. In the event of disapproval of any terms, the attorney must serve a notice upon the other party or his or her attorney stating which terms are not approved and containing suggested revisions of those terms. If the parties fail to agree to revisions of the disapproved terms within 10 business days, the contract is null and void.

According to Damore, he did not have a 304 rider with him at the time, but explained to the Mongreigs that their attorney could alter any terms except price, closing date, or possession date. The Mongreigs testified that Damore told them the contract would be null and void if their attorney did not approve it. Damore added a handwritten provision to the contract which stated, “Attorney approval with 5 days of contract.” He also added some other terms which are not relevant to this appeal. Additionally, Damore crossed out the $306,000 price and wrote in a price of $315,000. The Mongreigs initialed the addition and changed terms and signed the contract. Damore then met Gasaway at a local country club and explained the changes to him. Gasaway contacted Damore later that afternoon and stated he would agree to the terms.

On the evening of January 23, 1987, Damore picked up the contract from Gasaway. Since Damore was leaving for vacation the next day, he gave the contract to another Re/Max realtor, Georgiann Wagner. Wagner took the contract to the Mongreigs the next day so they could show it to their attorney. The Mongreigs took the contract to the office of their attorney, Robert Grossman, on January 26.

Grossman testified that when he reviewed the contract he found it deficient in several respects. He noticed that the prospective purchaser failed to initial the price change and that the contract did not reveal how Frank Klotz was affiliated with Davane. The promissory note enclosed for the $11,500 did not contain any due date, according to Grossman. He testified that the Mongreigs stated they had been told by John Damore that the contract would be null and void if their attorney did not approve it.

On January 27, Grossman spoke to Wagner on the telephone. According to Grossman, he told Wagner that he would not approve the contract and suggested they draw up another one. Grossman brought the three aforementioned deficiencies to Wagner’s attention. Gross-man testified that he told Wagner any new contract should specify the status of Frank Klotz in Davane and mentioned a few minor terms which he wished to have added to any such contract.

Georgiann Wagner also testified about her January 27 conversation with Grossman. She stated that Grossman never asked who Frank Klotz was or expressed any reservations about the note. Gross-man did tell her that his clients technically had an out because the buyer failed to initial the price change. He dictated an addendum with some minor terms he wished to have added to the agreement. Wagner stated she would type it up and have the purchaser sign it. Grossman stated he would recommend that his clients accept the contract.

Wagner then met David Gasaway in a bank parking lot and had him initial the addendum. The next morning, Gasaway went to the office of his attorney, Gerald Sheridan, in Wheaton. Sheridan then sent a letter to Grossman dated January 28, 1987, in which he stated that he understood Grossman had told Georgiano Wagner the previous day that the Mongreigs did not believe there was an enforceable contract because the buyer had not initialed the price change. The letter went on to state that if the Mongreigs persisted in this position, Davane would pursue any necessary legal remedies, including a suit for specific performance.

Sheridan spoke to Grossman on the telephone later that afternoon. Sheridan stated that Davane and the Mongreigs had a contract and if it was not carried out, Davane would file a specific performance action. According to Sheridan, Grossman stated that he did not approve the contract, and he pointed out some specific language in the document.

The evidence revealed that Grossman received two offers to purchase the property on January 27 or 28 for $320,000. One was from Philip Moser; the other was from Lee Fry Realty. Grossman testified that when he attempted to tell Mrs. Mongreig about these offers, she told him the property was off the market. Joan Smythe of Re/Max testified, however, that when she spoke to Mr. Mongreig on the evening of January 27, he told her they had received a $320,000 offer for the property, and Davane would have to submit a higher offer. Mr. Mongreig denied he said this to Smythe.

The January 23 agreement made the transaction contingent upon satisfactory soil testing. A company retained by David Gasaway performed soil tests on the property on January 30. Georgiann Wagner sent the Mongreigs a letter dated February 3, 1987, in which she stated the promissory note for the earnest money had been redeemed and a cashier’s check for $11,500 from Davane had been deposited in the Re/Max Elite escrow account. Robert Grossman responded in a letter to Wagner dated February 5, in which he stated there was no contract because there had been no attorney approval.

Gerald Sheridan testified that he found out sometime after January 28, 1987, that the Gasaway family had not yet applied for articles of incorporation for Davane, although they had opened a checking account in that name. Sheridan told them they had better do so, and he prepared such an application, which was signed by Chester Gasaway, David’s father, on February 13, 1987. Davane officially became incorporated on March 2, 1987. Davane’s complaint against the Mongreigs was filed on March 12.

The trial judge determined that an enforceable contract for the sale of the Mongreig property existed and ordered specific performance. The judge also ruled that the Mongreigs would be estopped in any event from denying the enforceability of the January 23, 1987, agreement. The instant appeal ensued.

The Mongreigs argue that there was no contract because they withdrew prior to its ratification by Davane. A party who contracts with an unauthorized agent may withdraw from the contract at any time prior to the principal’s ratification. (La Salle National Bank v. Brodsky (1964), 51 Ill. App. 2d 260, 267; Restatement (Second) of Agency §88 (1958).) Refusal to perform the obligations of an alleged contract constitutes a withdrawal. Restatement (Second) of Agency §88, comment a, at 226 (1958).

According to the Mongreigs, David Gasaway could not have been an authorized agent of Davane because Davane did not even exist on January 23, 1987. Davane argues that the Mongreigs are estopped from denying its corporate existence as of that date because they signed a contract in which “Davane, Inc.” was listed as the buyer. Davane relies on the case of Zimmerman Ford, Inc. v. Cheney (1971), 132 Ill. App. 2d 871.

In Zimmerman Ford, defendant was sued on a retail installment contract and argued on appeal that plaintiff had failed to prove its corporate existence. The court held that defendant had waived this argument and then stated in dicta that defendant was estopped from denying plaintiff’s corporate existence. (Zimmerman Ford, 132 Ill. App. 3d at 874.) The brief discussion of the estoppel issue in Zimmerman Ford fails to discuss the recognized relationship between the principle of estoppel to deny corporate existence and the doctrine of defacto corporations.

An organization which is not technically a corporation because of the failure to meet some statutory requirement will be recognized as a de facto corporation if there is a valid law under which it may be organized, a good-faith effort to organize under the law, a colorable or apparent compliance with the law, and if the organization is a user of corporate powers. (Inter-Ocean Newspaper Co. v. Robertson (1920), 296 Ill. 92, 94.) A person who contracts with an entity while the entity is acting as a de facto corporation, and who contracts with it as an organized corporation, is estopped from denying its corporate status at the time the parties entered into the agreement. (Imperial Building Co. v. Chicago Open Board of Trade (1908), 238 Ill. 100, 110.) If the organization was not a de facto corporation, however, there is no estoppel to deny its corporate existence. See Hossack v. Ottawa Development Association (1910), 244 Ill. 274, 294.

Here there was no colorable or apparent compliance with the statutory formalities for creating a corporation. As of January 23, 1987, the date of the alleged contract, Davane had not even filed its articles of incorporation pursuant to section 2.10 of the Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 2.10). Davane did not do so until February 13, 1987. Thus, Davane could not be considered a de facto corporation prior to February 13, 1987, and the Mongreigs are not estopped from denying its corporate existence prior to that date.

The Mongreigs are correct in asserting that David Gasaway was an unauthorized agent as of January 23, 1987, since the alleged principal did not even exist at the time. Gerald Sheridan’s letter of January 28 to Robert Grossman and Grossman’s letter of February 5 to Georgiann Wagner made it clear that the Mongreigs expressed their belief prior to February 13, the earliest date upon which Davane could be recognized as a de facto corporation, that they did not have an agreement with Davane. These renunciations of any purported contractual obligations constituted withdrawal from any possible contract with Davane before Davane even came into existence and, thus, before it could possibly ratify the agreement. Accordingly, there was no enforceable contract between the parties. For the above reasons, the trial court’s conclusion to the contrary was against the manifest weight of the evidence, as was the court’s ruling that the Mongreigs were estopped from denying the enforceability of the contract.

Because of our disposition of this matter, we need not consider the Mongreigs’ argument that there was no contract because the evidence indicates their attorney never approved it. For the above reasons, the judgment of the circuit court of Du Page County granting specific performance to Davane is reversed.

Reversed.

UNVERZAGT, P.J. and McLAREN, J., concur.


author: JUSTICE REINHARD

text:
    MODINE MANUFACTURING COMPANY, Appellant, v. POLLUTION CONTROL BOARD et al., Appellees.
    Second District
    No. 2—89—0441
    Opinion filed February 1,1990.

      Roy M. Harsch, Daniel E O’Connell, and Lisa Marie Anderson, all of Gardner, Carton & Douglas, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Patricia E. Collins, Michelle D. Jordan, and Matthew J. Dunn, Assistant Attorneys General, of Chicago, of counsel), for respondent Environmental Protection Agency.
    Dorothy M. Gunn, of Pollution Control Board, of Chicago, for respondent Pollution Control Board.
   JUSTICE REINHARD

delivered the opinion of the court:

Modine Manufacturing Company (Modine) petitions for review of an order of the Pollution Control Board (PCB) in an action instituted by the Environmental Protection Agency (EPA), in which the PCB imposed a $10,000 civil penalty against Modine for operating a facility without a permit in violation of section 9(b) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. lllVa, par. 1009(b)).

The only issue presented for review is whether the $10,000 penalty was necessary to aid in the enforcement of the Act.

The record of the proceedings below establishes the following facts. Modine is engaged in the manufacture of aluminum air-conditioning condensers and evaporators for use in motor vehicles and operates a plant near Ringwood, Illinois, in McHenry County. Prior to January 24, 1986, Modine used a process known as “Alfuse” in the production of evaporators to bond fins to unassembled evaporator cores. The process involves applying a bonding slurry to the parts and curing the bond in an evaporator oven. The oven is a source of particulate emissions which pass through a venturi scrubber before being emitted out of a stack.

On December 15, 1981, a test of emissions from the evaporator production line revealed emissions in excess of the limit provided for by applicable regulations. On March 22, 1982, Sudhir Desai, an employee of the EPA, mailed a letter to Modine requesting it to submit a plan for compliance with emissions regulations. On April 15, 1982, Modine responded that it had retained a consultant to evaluate the problem and would implement his recommendations.

The consultant, David Rimberg, of North American Perneo, Inc., prepared a report making specific recommendations including adjustment of the liquid-to-gas ratio in the scrubber system. Modine made the suggested adjustments. On August 2, 1982, Modine applied for renewal of its permit to operate the condenser and evaporator production lines. On September 21, 1982, the EPA issued a renewal permit scheduled to expire on October 31, 1983. A condition of this permit was that a stack test be conducted within 180 days of its issuance.

Modine performed a stack test on January 11, 1983, which indicated emissions below the limit. Modine reported this result to the EPA and indicated that it would conduct additional tests for verification. These tests, conducted in February and April 1983, showed particulate emissions in excess of the limit. Modine informed the EPA of the results of those tests. On June 23, 1983, the EPA notified Modine that it was in violation of emission regulations and could be subject to an enforcement action. A preenforcement conference was held on July 21, 1983, at which Modine outlined specific steps to decrease emissions, including installation of a new fan in the scrubber.

Prior to the preenforcement conference, Modine applied to the EPA for renewal of its operating permit. On August 3, 1983, the application was denied. Modine then submitted another permit application for the evaporator production line only. This application was also denied.

Throughout the period following the preenforcement conference, Modine informed the EPA of its progress in installing the new fan. Due to weather delays, the fan was not installed until January 1984. The total cost of installing the fan was $22,000. Despite the installation of the fan, a stack test conducted in March 1984 showed excess emissions. Modine again consulted with Perneo, which suggested certain adjustments. A second preenforcement conference was held on June 25, 1985. At this conference, Modine submitted a compliance plan which incorporated Pemco’s recommendations. Modine attempted to implement the recommendations, although a suggested adjustment of the scrubber’s liquid-to-gas ratio caused the system to shake severely. Modine kept the EPA apprised of its progress. Stack tests conducted in March 1985 still showed noncompliance.

During this time, Modine was considering several options for achieving compliance and ultimately decided to replace the Alfuse process with the Nocolok process. In February 1985, Modine purchased a technology transfer and licensing agreement from Nocolok for $310,000.

On June 26, 1985, a conference was attended by representatives of Modine and the EPA. Modine discussed its plans to replace the Al-fuse process. The EPA agreed to accept this as a compliance plan and refrain from bringing an enforcement action against Modine for particulate air emission violations.

Modine discontinued use of the Alfuse process in late January 1986. On February 25, 1986, the EPA filed a two-count complaint with the PCB. Count I alleged operation of the evaporator production line without a permit from October 31, 1983. Count II alleged violation of particulate emission limitations. The PCB found both violations to have occurred and imposed a $10,000 penalty on Modine.

Modine petitioned for review of the PCB order directly to this court, asserting that the EPA’s agreement not to institute enforcement proceedings barred the instant action. Modine also asserted that the PCB erred in imposing a $10,000 penalty because no penalty was necessary to enforce the Act. This court held in Modine Manufacturing Co. v. Pollution Control Board (1988), 176 Ill. App. 3d 1172 (unpublished order under Supreme Court Rule 23), that the EPA had agreed not to pursue enforcement based on emissions violations but that no such agreement existed with respect to permit violations. This court remanded to the PCB for determination of an appropriate penalty based solely on the permit violation. This court declined to address the propriety of the penalty imposed. On remand, the PCB imposed a $10,000 fine based on the permit violation. Modine again seeks direct review of this order in this court pursuant to section 41 of the Act (Ill. Rev. Stat. 1987, ch. lllVa, par. 1041).

Modine contends that the PCB erred in imposing a $10,000 penalty because the penalty was not necessary to aid in the enforcement of the Act, but rather was imposed solely for punitive reasons. Respondents maintain that the penalty imposed reflects proper consideration of applicable statutory factors and was not an abuse of discretion.

Section 33(b) of the Act provides that in enforcement actions the final order of the PCB “may include a direction to cease and desist from violations of the Act or of the Board’s rules and regulations or of any permit or term or condition thereof, and/or the imposition by the Board of civil penalties in accord with Section 42 of this Act.” (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1033(b).) Section 42 provides for a civil penalty not to exceed $10,000 for each violation and an additional penalty not to exceed $1,000 for each day during which the violation continues. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1042.) The legislature has vested the PCB with broad discretionary powers in the imposition of civil penalties, and its order will not be disturbed upon review unless it is clearly arbitrary, capricious or unreasonable. City of Freeport v. Pollution Control Board (1989), 187 Ill. App. 3d 745, 750, 544 N.E.2d 1.

Nonetheless, it is well established that the Act does not confer upon the PCB the authority to impose a civil penalty in every case of a violation of the Act or regulations. (Metropolitan Sanitary Dis trict v. Pollution Control Board (1975), 62 Ill. 2d 38, 45, 338 N.E.2d 392; Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill. 2d 204, 208, 326 N.E.2d 406.) The principal reason for the imposition of civil penalties under the Act is to provide a method to aid in its enforcement; punitive considerations are secondary. Metropolitan Sanitary District, 62 Ill. 2d at 45, 338 N.E.2d at 397; Trilla Steel Drum Corp. v. Pollution Control Board (1989), 180 Ill. App. 3d 1010,1013, 536 N.E.2d 788.

Initially, Modine contends that imposition of a penalty here would not aid in the enforcement of the Act because it was no longer in violation of the Act at the time the complaint was filed. While there is arguably some support for this view (see City of Moline v. Pollution Control Board (1985), 133 Ill. App. 3d 431, 434, 478 N.E.2d 906; Chicago Magnesium Casting Co. v. Pollution Control Board (1974) , 22 Ill. App. 3d 489, 495, 317 N.E.2d 689), we believe all the relevant facts and circumstances must be examined to determine if a civil penalty is to be imposed as a method to aid in the enforcement of the Act. Thus, we decline to hold categorically that penalties may not be imposed for wholly past violations. (See City of East Moline v. Pollution Control Board (1985), 136 Ill. App. 3d 687, 693, 483 N.E.2d 642.) Nonetheless, as we explain below, we do not believe the record supports the penalty imposed here.

In making its determination as to whether a penalty is warranted and, if so, the amount of the penalty, the PCB must consider all facts and circumstances bearing upon the reasonableness of the complained-of conduct, including, but not limited to, certain factors specified in section 33(c) of the Act. (Ill. Rev. Stat. 1985, ch. lllVa, par. 1033(c); Southern Illinois Asphalt Co. v. Pollution Control Board (1975) , 60 Ill. 2d 204, 208-09, 326 N.E.2d 406.) The statutory factors in effect at the time the complaint was filed were: (iv) the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source.” (Ill. Rev. Stat. 1985, ch. IIIV2, par. 1033(c).)

“(i) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people;
(ii) the social and economic value of the pollution source;
(iii) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and

Moreover, the severity of the penalty should bear some relationship to the seriousness of the infraction or conduct. (Southern Illinois Asphalt Co., 60 Ill. 2d at 208, 326 N.E.2d at 408.) Additionally, good faith or lack thereof is pertinent to the issue of whether a penalty should be imposed and, if so, the amount of the penalty. Archer Daniels Midland v. Pollution Control Board (1986), 149 Ill. App. 3d 301, 305, 500 N.E.2d 580; Standard Scrap Metal Co. v. Pollution Control Board (1986), 142 Ill. App. 3d 655, 662, 491 N.E.2d 1251; see also City of Chicago v. Pollution Control Board (1978), 57 Ill. App. 3d 517, 521, 373 N.E.2d 512.

Applying these principles to the instant case, we note that with respect to the first statutory factor, the PCB found that “[t]he Board does consider that the degree of interference with the public health, welfare or property is considerable for operating without a permit. *** When a permit program is established, each permit and its contents become a first line mechanism by which the requirements of the Act and related Board regulations are effectuated, facility by facility.” Application of this rationale to the facts of the instant case is undercut by the recent decision of the Appellate Court for the First District in Trilla Steel Drum Corp. v. Pollution Control Board (1989), 180 Ill. App. 3d 1010, 536 N.E.2d 788. In that case, the court stated:

“The record reveals that the penalty was imposed due to TrilIa’s failure to obtain an operating permit for a period of 15 months. During that time, however, Trilla was not entirely beyond the regulatory awareness of the Agency since prior to the end of 1984 Trilla had applied for and received an operating permit. Further, in January 1986, Trilla had applied for and received a variance from the Agency. By Trilla’s permit and variance applications, the company became a part of the regulatory program of the Agency and the Agency had data concerning the company’s existence, the products it manufactured and the contaminants which were emitted by the operation. The Board has not shown that Trilla’s omission has harmed in a serious manner either the information gathering or oversight roles of the Agency.” 180 Ill. App. 3d at 1013, 536 N.E.2d at 790.

Similarly, in the instant case, Modine was not beyond the regulatory awareness of the EPA. Modine had initially operated with a permit, applied for a renewal permit, and conducted tests of its facilities and apprised the EPA of the results. The EPA and the PCB note that in Trilla the petitioner had applied for and received a variance, whereas Modine never sought a variance. We find this distinction to be of no consequence. Modine became part of the regulatory program, the EPA had information about its operations, and the EPA voluntarily withheld enforcement procedures while working with Modine to achieve compliance.

As to the remaining statutory factors, the PCB found that, aside from its operation without a permit, Modine’s operations were of significant social and economic value. This finding is amply supported by the record. The PCB found that the third factor, suitability of the pollution source to its location, was of little relevance to a case involving a permit violation.

As to the final factor, the technical practicability and economic reasonableness of reducing or eliminating emissions, the PCB found that even though time may have been a limiting factor in implementing a reduction mechanism, the PCB would not consider the factor in a light favorable to Modine because Modine never applied for a variance. We fail to see how this procedural consideration is relevant to the question of technical practicability and economic reasonableness. In any event, it appears from the record that Modine did not anticipate the difficulty it would encounter in achieving compliance. Modine’s decision to concentrate its efforts and resources on achieving compliance, rather than obtaining a variance, is largely excusable in these circumstances.

Moreover, it is apparent from the record that Modine acted in good faith throughout the relevant time period. Modine was candid and cooperative with the EPA. Additionally, Modine made a sincere effort and expended substantial sums of money to remedy the problem.

Under all these circumstances, we find that imposition of the maximum penalty of $10,000 for this violation is not supported by the record, even considering the PCB’s argument that the statute allows for an additional penalty not to exceed $1,000 for each day the violation continues. Imposition of the maximum penalty is not commensurate with the severity of the violation and would not aid in the enforcement of the Act. We note that we are empowered to determine an appropriate penalty and need not remand to the PCB for a new determination. (Archer Daniels Midland v. Pollution Control Board (1986), 149 Ill. App. 3d 301, 306, 500 N.E.2d 580.) We have reviewed the record and determine that a penalty of $1,000 is warranted, and the order of the PCB is so modified.

For the foregoing reasons the order of the PCB is affirmed as modified.

Affirmed as modified.

UNVERZAGT, P.J., and McLAREN, J., concur.

      As the EPA and the PCB note, since this action was instituted, section 33(a) has been amended and now expressly provides that “It shall not be a defense to findings of violations *** or a bar to the assessment of civil penalties that the person has come into compliance subsequent to the violation.” Ill. Rev. Stat., 1988 Supp., ch. 11P/2, par. 1033(a).


author: JUSTICE McLAREN

text:
    MARY LOU GLAVES, Plaintiff-Appellant, v. RONALD GLAVES, Defendant-Appellee.
    Second District
    No. 2—89—0201
    Opinion filed January 31,1990.

      George M. Sachs & Associates, of Vernon Hills (George M. Sachs, of counsel), for appellant.
    Ryan & Viglione, of Waukegan (Kathleen M. Viglione, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff appeals from several court orders dismissing with prejudice two counts of her complaint seeking damages for personal injury. We affirm.

On September 25, 1986, Mary Lou Glaves (plaintiff) was cut by an electrical circular saw operated by her husband Ronald Glaves (defendant). Plaintiff received over 200 stitches in her right arm, wrist and hand. At the time of the injury, spouses in Illinois were prevented from suing each other for other than intentional torts committed during coverture. Ill. Rev. Stat. 1985, ch. 40, par. 1001.

On January 1, 1988, Public Act 85 — 625 became law. This Act provided in pertinent part that spouses could sue for any kind of tort committed during the marriage.

On March 21, 1988, plaintiff brought suit against defendant. Count I alleged that plaintiff’s injuries were caused by defendant’s negligence. Count II alleged willful and wanton misconduct on defendant’s part. Defendant moved to dismiss the complaint, averring that plaintiff’s actions were barred by the law in effect at the time of the injury. The trial court denied the motion to dismiss and found that Public Act 85 — 625 should be applied retroactively. Defendant’s appeal of this order was dismissed.

On January 30, 1989, a hearing was held on defendant’s amended motion for rehearing on the issue of retroactive application of Public Act 85 — 625. The court vacated that portion of its order finding that the Act should be applied retroactively and found that the Act should only be applied prospectively. The court subsequently dismissed counts I and II of the complaint and granted leave to plaintiff to amend her complaint to allege the commission of an intentional tort. As the orders dismissing counts I and II contained Supreme Court Rule 304(a) ((November 30, 1988), Official Reports Advance Sheet No. 23 (eff. Jan. 1, 1989)) language regarding enforcement and appealability, plaintiff appeals the orders to this court.

Plaintiff contends that Public Act 85 — 625 should be given retroactive application and that this court should reverse the trial court’s dismissal of counts I and II of her complaint. We note initially that a presumption exists that an amendatory act is intended to apply only prospectively. (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 309; Levy v. McKiel (1989), 185 Ill. App. 3d 240, 242.) This presumption is rebuttable only if the act, by express language or necessary implication, indicates that the legislature intended a retroactive application. (Rivard, 122 Ill. 2d at 309.) However, this presumption does not apply to changes in procedures or remedies; when an amendment changes procedures alone, it will be construed as retroactive so long as that is what the legislature intended. Rivard, 122 Ill. 2d at 310.

We must first determine, then, whether Public Act 85 — 625 amended a substantive right or merely a procedural right. The statutory language conferring interspousal tort immunity in Illinois was promulgated by the General Assembly in a 1953 amendment to the Married Women’s Act of 1874. This amendment provided that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” (See Ill. Rev. Stat. 1979, ch. 40, par. 1001.) Our supreme court, in a series of decisions, construed the amendment, which reestablished the common-law rule of interspousal tort immunity, as a substantive bar to personal injury litigation between spouses. (See Wartell v. Formusa (1966), 34 Ill. 2d 57, 60; Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 193.) However, the court in Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, concluded that the effect of the 1953 amendment “was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.” (Allstate, 77 Ill. 2d at 390.) Since the Allstate decision, Illinois courts, including this court, have interpreted interspousal tort immunity as a procedural, rather than a substantive, bar to actions between spouses. See State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674, 680; Farmers Insurance Group v. Nudi (1982), 108 Ill. App. 3d 151, 153; Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 1077.

Having concluded that the immunity is procedural, we must determine whether the legislature intended Public Act 85 — 625 to be applied retroactively. Legislative intent may be divined through any of the ordinary devices of statutory interpretation, including: (1) the evil to be remedied and the object to be obtained; (2) the reason and necessity for the statute; and (3) the history of the legislation, particularly the record of legislative debates and statements by the sponsors of the legislation. Rivard, 122 Ill. 2d at 310.

Our review of the relevant materials leads us to conclude that the General Assembly did not intend Public Act 85 — 625 to be applied retroactively. Looking to the history of the Act, we find that the Act was approved on September 20, 1987, but did not become effective until January 1, 1988. From this we conclude that the legislature intended a later, rather than an earlier, effective date. Plaintiff cites as precedential State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674, in which the Appellate Court for the Third District retroactively applied Public Act 82 — 569 (“An Act relating to interspousal torts”), which eliminated interspousal tort immunity for intentional torts. In Palmer, the act in issue recited that “ ‘[tjhis amendatory Act shall take effect upon becoming law.’ ” (Palmer, 123 Ill. App. 3d at 681, quoting Pub. Act 82 — 569, §3.) The court concluded that the legislature intended immediate, early application of that act. The court, therefore, found no error in the trial court’s retroactive application of the law.

The language of the Act before us, however, does not provide such a sense of urgency. Had the legislature intended retroactive application here, it surely would not have provided for an effective date more than three months after approval of the Act. Nothing in the statements by supporters of the bill, supplied by plaintiff, direct us toward an opposite result. Without any evidence of a contrary intent by the legislature, we do not find error in the trial court’s prospective application of the Act. We, therefore, determine that counts I and II of plaintiff’s complaint were properly dismissed by the trial court.

For these reasons, we affirm the orders of the circuit court of Lake County.

Affirmed.

DUNN and WOODWARD, JJ., concur.