author: Mr. JUSTICE STOUDER

text:
    The Charter Oak Fire Insurance Company, Plaintiff-Appellee, Cross Appellant, v. William L. Snyder et al., Defendants—(Carl T. Geng et al., Defendants-Appellants, Cross Appellees.)
    (No. 73-132;
    Second District
    October 1, 1974.

      Fuqua, Fuqua, Winter & Homer, of Waukegan, for appellants.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan (Robert L. Snook and Edward A. Puisis, of counsel), for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is a declaratory judgment in which the plaintiff, The Charter Oak Fire Insurance Company, claims that it owed no obligation of insurance coverage to its insured William Snyder with respect to an automobile accident between Snyder and defendant-appellant Carl Ceng. After a trial without a jury the circuit court of Lake County found in favor of the plaintiff insurance company on the ultimate issue. In declaring the rights of the parties the court found first, that a policy of liability insurance issued by the plaintiff was in effect at the time of the automobile collision between cars operated by its insured Snyder and Ceng, the party injured in the collision and second, that the plaintiff was relieved from liability on such policy because of its insured’s failure to give notice as required by the policy. Ceng has appealed from the court’s determination that notice was not properly given and the plaintiff has cross-appealed from the court’s determination that its policy was in effect at the time of the collision.

Since in our view of this case we find no reason for disturbing the judgment of the trial court it will be unnecessary to consider the cross-appeal, and we therefore for the purpose of this appeal accept as correct without further discussion the determination by the trial court that there was a policy of liability insurance in effect issued by the plaintiff-cross-appellant in favor of Snyder, its insured, at the time of the collision.

Carl Geng was injured as a result of an automobile collision between his car and one operated by William Snyder in Lake County, Illinois, on November 26, 1968. His injuries were severe and on January 15, 1969, he filed his complaint in the circuit court of Lake County seeking to recover damages from Snyder. On the 12th day of July, 1971, a stipulation was entered into by attorneys for Geng, Snyder, Government Employees Insurance Company and Charter Oak by which stipulation the parties agreed that a judgment might be entered against Snyder and in favor of Geng for $50,000 payable solely out of insurance. This amount was computed on the basis of the injuries sustained which were in excess of the amount of the judgment but with regard for the insurance policies issued by Government Employees and Charter Oak which each had a limit of $25,000. Government Employees paid $25,000, the amount of its total liability, to Geng and such company is not a party to this appeal. At the time of the settlement it was known by the parties that Charter Oak claimed that it was not liable and subsequently Charter Oak commenced this supplemental declaratory action seeking a court determination of its liability.

In the summer of 1966 William Snyder, a single man, was in the United States Navy. He was stationed at Guantanamo Bay, Cuba, and his parents resided in Curwensville, Pennsylvania. In September of 1966 he went to the Bellmore Insurance Agency in Curwensville and applied for insurance coverage. Pursuant to his application a policy of insurance was issued.to Snyder by Travelers Insurance Company. The address used in the policy was the Curwensville address of Snyders mother. When the policy came through from Travelers the agency mailed the policy and their statement to Snyder at the Curwensville address and Snyder paid tire bill.

During the month of August, 1967, Snyder was transferred from Guantanamo Bay, Cuba, to Great Lakes, Illinois, and while en route he stopped in Pennsylvania and went to the agency office.

Because of some prior accidents Travelers elected and notified the agency that it would renew Synders coverage only on a sub-standard basis using the Charter Oak Fire Insurance Company policy in lieu of a Travelers policy.

A new policy showing the Charter Oak Company name was issued by Travelers. The agency sent the policy and the bill for the premium to Snyder at his mothers Curwensville, Pennsylvania, address on September 7, 1967, and the bill was paid.

In September of 1968, the renewal policy was written and, following the procedure of the last 2 years, was sent to Snyder with the bill at his mother’s address in CurwensviUe. Snyder, however, did not pay the premium statement until December 6, 1969.

According to John Bellmore, who did business as the Bellmore Insurance Agency, he continued to send monthly statements to Snyder at the CurwensviUe address for the policy in effect for the period September, 1968, to September, 1969, but received no response. After a conversation with Snyder’s mother Bellmore sent a letter to Snyder at his Great Lakes address dated November 19, 1969, requesting payment for the prior year the policy was in effect. As a result of this letter Snyder on December 6, 1969, paid the amount requested by Bellmore.

According to Snyder the November 19, 1969, letter from Bellmore was the first and only inkling that the Charter Oak policy had been issued for the September, 1968-1969, period because after moving to Great Lakes he had requested his mother in Curwensville to tell the Bellmore agency that he did not wish to renew the policy. Snyder’s mother did not notify the agency. Supposing his mother to have so notified the Bellmore agency Snyder applied for and received insurance from the Government Employees Insurance Company which was in effect after September, 1968. As indicated earlier, the collision between the Geng and Snyder cars occurred on November 26, 1968 some 11 months prior to Snyder learning of the Charter Oak policy. What happened before and after Snyder learned of the policy regarding his notice to the company of the collision with Geng is the principal source of the controversy wlrich we shall discuss on this appeal.

In considering the complaint for declaratory judgment and the answer thereto the evidence presented to the trial court was entirely documentary. The principal documents bearing on this controversy are the insurance policy, Snyder’s deposition, Bellmore’s deposition and the letter of November 19, 1969. There were other exhibits tending to support or expand some of the matters referred to in the depositions.

In seeking to reverse the judgment of the trial court appellant Geng urges that under the circumstances the provision of the insurance policy regarding notice of the details of the collision was properly given to the insurer and consequently the trial court erred in holding contrarywise.

The insurance policy included the provision:

“In the event of an accident or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable * * * If claim is made or suit is brought against the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”

It is undisputed that according to the usual meaning of the notice provision notice was not given by the insured or on his behalf as soon as reasonably practicable. The question remains whether the circumstances warrant the conclusion that a reasonable excuse existed for the delay. Whether such a reasonable excuse existed is the issue which the trial court was required to decide, and it decided that reasonable excuse justifying delay did not exist.

In his view of the facts appellant Geng insists that Snyder had no knowledge that the Charter Oak policy had been renewed until receiving Bellmore’s letter dated November 19, 1969, and that his lack of any knowledge of the policy excused his failure to give notice during that period. Furthermore, the November 19 letter indicated that Bellmore had received notice of the collision from Snyder’s mother sometime before November 19 since an incident is referred to in the letter.

In support of the trial court’s determination the insurance company contends the evidence shows Snyder was negligent in ascertaining the existence of his policy and that in fact the company did not receive notice of the collision until March 10, 1970, approximately 4 months after Snyder knew of the policy. According to the insurance company it did not receive any notice of the collision with Geng from Snyder’s mother and the letter of November 19, 1969, does not support Geng’s conclusion that such notice was given.

From the documentary exhibits it appears that Snyder was aware that his previous policy with the insurance company expired on September 8, 1968. Because he had become eligible for Government Employees insurance he had decided to make the change and asked his mother to advise Bellmore of his desire not to renew the policy. On September 20, 1968, Snyder was involved in a one-car collision in Round Lake, Illinois, when he ran off the road and hit a tree resulting in damages of $1,477.68 to his car. Because the Government Employees policy had not come through yet he paid for the repair of the car himself and made no claim against the Government Employees company. Snyder was involved in a second collision on November 26, 1968, with the Geng car and at this time his Government Employees policy was in effect and Snyder notified Government Employees company within a day or two after this collision.

Bellmore continued to send monthly statements for the premium due on the policy expiring September, 1969, to the Curwensville, Pennsylvania, address. According to Snyder none of these letters or bills was forwarded to him and his mother made no mention of them until one dated November 11, 1969, was forwarded to him. Thereafter Snyder called his mother who in turn called the Bellmore agency and Bellmore sent Snyder a letter dated November 19, 1969, as follows:

“We have been sending you monthly statements every month for the past two years of your automobile insurance. Now finally when we start to institute legal action I receive a call from your Mother on Grampian Road advising me, that you are in Great Lakes and that your car was demolished.
We paid the $377.00 for your automobile insurance back in the fall of 1968 so you did have the insurance in force. You should have contacted me immediately when your automobile was wrecked.
We are looking to you for the $377.00 payment and if you will send me the details of your accident I will see what I can do for you there. You definitely owe the $377.00 and we will expect payment in full within 30 days.
Your insurance expired September 8, 1969 and you have not had insurance since that date, as you ignored the two notices we sent you asking you if you wanted it renewed.
Please forward payment within the next 30 days.”

Pursuant to the request for payment in Bellmore’s letter of November 19, 1969, Snyder sent the requested payment to Bellmore on December 6, 1969, the payment being made without comment or explanation. On January 2, 1970, Snyder sent a letter to Bellmore regarding his claim for $1,477.68 together with repair bills referring only to the loss on September 20, 1968. Sometime later Snyder discussed the Charter Oak policy with a representative of the Government Employees company which resulted in a letter from Government Employees on March 10, 1970, to the Bellmore agency which included a report concerning the November 26, 1968, collision with the Geng automobile.

The reasons for the usual insurance policy provision requiring that notice of a loss covered by the policy be given to the insurer as soon as reasonably practicable have often been stated and do not require extensive exposition in this opinion. (See City of Chicago v. United States Fire Insurance Co., 124 Ill.App.2d 340, 260 N.E.2d 276, Vignali v. Farmers Equitable Insurance Company, 71 Ill.App.2d 114, 216 N.E.2d 827, H. H. Hall Construction Co. v. Employers Mutual Liability Insurance Co., 43 Ill.App.2d 62, 193 N.E.2d 51, Hoffman & Klemperer Co. v. Ocean Accident & Guarantee Corp. (7th Cir. 1961), 292 F.2d 324, Hawkeye-Security Insurance Co. v. Myers (7th Cir. 1954), 210 F.2d 890, and International Harvester Co. v. Continental Casualty Co., 33 Ill.App.2d 467, 179 N.E.2d 833.) In determining whether a delay in giving notice of a loss to an insurer is justified neither the absence of prejudice nor lack of knowledge concerning the existence of the policy conclusively establish the timeliness of the notice even though such factors are important considerations in determining the propriety of the notice and the diligence of the insured. City of Chicago v. United States Fire Insurance Co., 124 Ill.App.2d 340, 260 N.E.2d 276.

We find it unnecessary in the instant case to decide whether Snyder’s ignorance of the policy prior to November, 1969, excused his delay in giving notice for nearly 11 months after the collision, because in our view of the case there is evidence from which the trial court could properly determine that the delay in giving notice after Snyder admittedly knew of the policy was not justified. With respect to this issue it seems to be the appellant’s position that as a matter of law the trial court was required to hold that the insurer did receive notice of the Geng collision prior to November 19, 1969. We do not believe the letter of November 19 supports the appellant’s contention. On the other hand we conclude that both the language of the letter and Snyder’s subsequent conduct as well as the absence of any other evidence regarding notice amply support the court’s determination. It may be inferred notice of the Geng collision was not given by Snyder’s mother to the Bellmore agency and that the first notice of the Geng collision was given to the insurer by the Government Employees company on March 10, 1970, nearly 4 months after Snyder learned of the existence of the policy. At best the November 19 letter is equivocal. However, Snyder’s letter of January 2, 1970, refers only to the September 20 collision and supports the inference that it was the September 20 collision referred to in Bellmore’s letter.

We believe the two principal cases relied on by the appellant, namely, Hoffman & Klemperer Co. v. Ocean Accident and Guarantee Corporation, 292 F.2d 324 and H. H. Hall Construction Co. v. Employers Mutual Liability Insurance Co., 43 Ill.App.2d 62, 193 N.E.2d 51, do not support appellant’s position that notice in this case was timely as a matter of law but rather suggest that a trial court’s determination of such an issue should not be disturbed. It is our conclusion there is ample evidence from which the trial court could have concluded that notice of the Geng collision was not given to the insurer until approximately 4 months after Snyder knew of his policy and that under the circumstances such delay was not justifiable or excusable.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE RINK

license: Public Domain

text:
    Margareth Price, Plaintiff-Appellee, v. The Prudential Insurance Co. of America, Defendant-Appellee—(Josephine Bernardin, Adm’r of the Estate of Lenora J. Corvi, Deceased, Defendant-Appellant.)
    (No. 73-98;
    Second District
    October 1, 1974.
    Horwitz, Anesi, Ozmon & Assoc., of Chicago (Joseph Riden, of counsel), for appellant.
    Ricci & Lascaro, of Wood Dale, and Tom Freeman, of Bensenville, for appellee.
   Mr. JUSTICE RINK

delivered the opinion of the comt:

This is an appeal from an order granting a judgment to the plaintiff Price against the defendant Bernardin, as administrator of the estate of Corvi, and for simplification, Prudential Insurance Co. of America. Also involved is a judgment against Bernardin, as administrator, on her counterclaim against Price arising out of a certain Equitable Life Assurance policy.

On September 20, 1972, Price filed a complaint against Prudential Insurance Co. of America and Josephine Bernardin, as administrator of the estate of Lenora J. Corvi.

The complaint alleges in substance that, during her lifetime, Corvi became the owner of a life insurance policy with Prudential in the amount of $2809, “and at sometime prior to her death on or about the 26th day of April, 1971, said Lenora J. Corvi named the plaintiff, Margareth Price, as sole beneficiary of said life policy.”

“That the original of said policy is now in the possession of The Prudential Insurance Co. of America.”

“That on or about the 26th day or April, 1974, said Lenora J. Corvi died.”

That the plaintiff has demanded payment of the proceeds of the policy from Prudential who has refused to make payment to the plaintiff.

That Josephine Bernardin, as administrator of the estate of Corvi, also claims the proceeds of the policy.

On October 3, 1972, the Honorable Philip F. Locke set the case for trial December 12, 1972, at 2 P.M.

On October 27, 1972, Prudential filed an answer to the complaint and a complaint for interpleader. In its answer, Prudential, in substance, admits that Corvi had a policy of insurance with it in the amount of $2809 but neither admits nor denies that Price is the beneficiary of the policy, but demands proof of that fact.

In its complaint for interpleader, Prudential sets forth that when the policy was issued, one Mary R. Imonetti was the beneficiary but that she died on February 5, 1971; that the insured, Corvi, endeavored to change the beneficiary to Price but before all tire steps were completed, Corvi died on April 26, 1971; that both Price and Bernardin, as administrator of the estate of Corvi, claim the proceeds; that it is willing to pay the proceeds to the person entitled to receive it.

On October 30, 1972, Bernardin, as administrator, filed her answer to the complaint stating in substance that she denied that Price is the beneficiary. Bernardin also filed a counter-claim in which she alleged in substance that although Corvi had attempted to name Price as beneficiary, the necessary steps had not been completed to the satisfaction of Prudential and consequently, the change was not effective. The counter-claim also alleges that Corvi was incompetent at the time she signed the change of beneficiary form on February 27, 1971.

Count II of the counter-claim is against Price and tibe Equitable Life Assurance Society. It alleges that Corvi had a policy of insurance with Equitable which named as beneficiary the estate of Lenora Corvi; that on March 2, 1971, while Lenora Corvi was mentally incompetent, she changed the beneficiary to Price; that Price, although not entitled to the proceeds of the policy, had received $1761.69 and that there is an additional $750 due from Equitable. Bernardin asks judgment against Price and Equitable for $2511.69.

Bernardin also answered the complaint of Prudential for interpleader which has no bearing on this case.

On November 2, 1972, Prudential filed its answer to the counter-claim of Bernardin in which it stated that it neither admits nor denies the allegations and prays that it be dismissed as to Prudential.

On November 2, 1972, Prudential filed its answer to the counter-claim of Bernardin. As to Counts I and II, Price denies all of the material allegations made by Bernardin.

On November 6, 1972, Price filed her answer to Prudential’s complaint for interpleader and stated that she denied “that prior to the completion of all steps necessary to change the beneficiary, the insured, Lenora J. Corvi, died.”

On November 16,1972, Prudential filed a motion for judgment on complaint for interpleader.

On the same date, November 16, 1972, Bernardin filed her answer to Prudential’s motion objecting to the motion and requesting that Prudential be required to remain a party until the trial. Also filed at the same time was a motion by Bernardin that Prudential be required to produce at the trial one Daniel J. Bombarg, the original insurance policy as well as many other records.

On November 16, 1972, the Honorable Philip F. Locke entered an order granting Prudential’s motion for judgment on its complaint for interpleader based on the pleadings.

On December 12, 1972, at 2 P.M. at which time the case had been set for trial, present in the chambers of Honorable Philip F. Locke were Mr. Freeman, attorney for plaintiff Price, Mr. Riden, attorney for defendant Bernardin, Mr. Zamis, attorney for Prudential. In order to understand what took place at that time, it is necessary to set forth portions of the record.

“Mr. Freeman: Your Honor, this comes on a complaint in equity * * * for the proceeds of a certain life insurance policy issued by Prudential # # ft »

After Mr. Freeman had made a further statement to the court referring to certain evidence to which Mr. Riden objected, the court stated, “Lets get right down to the meat of the question. Was there ever an application filed with Prudential for change of beneficiary?”

Mr. Freeman then made further evidentiary statements as to what had taken place.

Mr. Riden then entered the discussion and suggested that a witness be brought into chambers.

There was further discussion about the case law in point and the evidence.

The court then stated, “That’s right. We have got to dispose of this matter as quickly as possible.”

Then there was further discussion and exchange as follows:

“Mr. Riden: I thought she would have the burden of proof in her case.
The Court: She has proven her case. There is no question.
Mr. Riden: I haven’t heard any testimony yet.
The Court: There is enough law to support their allegations.
Mr. Riden: There has been no testimony.
The Court: There is no factual question interposed here. This is strictly a legal question. It devolves into a petition for summary judgment, is what it is.
Mr. Riden: But there is no petition for summary judgment filed.
The Court: There doesn’t have to be. The Court can do it of its own motion.
I have heard many cases of this nature. The law considers that as as [sic] done which ought to be done.”

A colloquy was:

“Mr. Riden: I thought I should have been allowed to offer testimony.
The Court: Say whatever you want to say and get it over with.”

Other conversation was:

“Mr. Riden: We are still on this Equitable case. We have got a counterclaim pertaining to Equitable.
The Court: I can’t do it today. I have got a jury waiting out there. I told you that. This case as far as I am concerned is over with.
Mr. Riden: If we can have five minutes?
The Court: No. I don’t have five minutes. I have had a jmy out there for an hour.”

Earlier, Mr. Riden, counsel for defendant-appellant had complained that he had not been allowed to state his case.

In reference to defendant-appellant’s contention that Lenora J. Corvi was an alcoholic and mentally incompetent so that she could not make valid changes of the beneficiary of the two policies, there was the following exchange:

“Mr. Riden: Then also we contend that Mrs. Corvi was an alcoholic and mentally incompetent.
The Court: That is water that’s long since gone under the bridge. She never was adjudicated. Therefore the law presumes her to have been competent at the time she executed —
Mr. Freeman: Your Honor, we have with us the owner of the home she was staying in.
The Court: We are not interested in that. It’s too late for that.
Mr. Riden: We also have a counterclaim pertaining to — Equitable Life Assurance policy. The counterclaim is in the amount of —.
Mr. Riden: There was another policy issued — there was a policy issued by Equitable and allegedly on March 2, 1971, Lenora Corvi changed the beneficiary to Josephine — Margareth Price.
The Court: So?
Mr. Riden: We contend she was mentally incompetent.
The Court: That has nothing to do with this case.”

The court did not require plaintiff to offer in evidence the Prudential policy and an alleged change of beneficiary form. Defendant-appellant was not allowed to present her case although Daniel J. Bombarg of Prudential was in court pursuant to a subpoena that called for the production of the Life Insurance Policy, copy of the letter of April 24, 1972, all documents mentioned in the letter, the entire file pertaining to said policy and the claim concerning the death of Lenora J. Corvi. Peter A. Zamis was in court and presumably had any records that were not in the possession of Daniel J. Bombarg, as the former had been ordered to keep the records of Prudential and that they should be made available to either of the claimants.

There is no allegation in plaintiff’s pleadings and no sworn testimony that anyone but Lenora J. Corvi had possession of her Prudential policy during her lifetime and that she had been prevented from sending the policy to Prudential, having a change of beneficiary form endorsed thereon, naming Margareth Price as beneficiary. The only document attached to the pleadings of any party pertaining to Prudential is complainant’s Exhibit “A” which is attached to the complaint for interpleader.

In reference to Count II of defendant-appellant’s counter-claim and which involves Equitable, and Count I, defendant-appellant’s attorney was not permitted to call as witnesses defendant, D. W. Burns, and plaintiff to prove that Lenora J. Corvi was drunk and mentally incompetent when she signed change of beneficiary forms.

The court then entered the following order:

“This cause coming on for trial this 12th day of December, 1972, and the Plaintiff being present in Court and represented by her attorneys, Charles C. Ricci and Thom J. Freeman, III, and the Defendant, Josephine Bernardin, Administrator of the Estate of Lenora J. Corvi, dec’d. being present in Court and represented by her attorney, Joseph Riden, and the proofs having been given, and the Court having jurisdiction over the subject matter herein and the parties hereto, it is hereby ordered as follows, to-wit:
IT IS HEREBY ORDERED that the issues in the above captioned matter are found in favor of the Plaintiff, Margareth Price and against the Defendant, Josephine Bernardin, Administrator of the Estate of Lenora J. Corvi, dec’d, and therefore that the law firm of Rathje, Woodward, Dyer, & Burt, as escrowee for the Prudential Insurance Co. of America, is hereby ordered to pay to the Plaintiff, Margareth Price, the entire proceeds of the Prudential Insurance Co. of America Policy #29 848 785, with interest due thereon, up to and including the date of this Order; and further that Josephine Bernardin, as Administrator of the Estate of Lenora J. Corvi, is hereby ordered to pay to the Plaintiff, Margareth Price, the sum of $44.40 for and as the Court costs incurred in the filing of this action; and further that the Defendant’s, Josephine Bernardin, Administrator of the Estate of Lenora J. Corvi, deceased, counterclaim pertaining to a certain Equitable Life Assurance Society of the United States policy is hereby denied.”

Since no evidence was taken, the only theory upon which the court could award a judgment to any party was that of a summary judgment. There was no pleading before the court requesting summary judgment. The pleadings raised genuine issues of fact so that had there been a motion for summary judgment, it should have been denied. It was therefore error to grant judgment to plaintiff, Margareth Price, and also error to enter judgment against Josephine Bernardin, administrator of the estate of Lenora J. Corvi, on the counter-claim pertaining to a certain Equitable Life Assurance Society policy of insurance. The judgment of the Circuit Court of Du Page County is reversed and the cause remanded to the Circuit Court of Du Page County for trial.

Reversed and remanded.

G. MORAN and CARTER, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    Donald Athey et al., Plaintiffs-Appellants, v. The City of Peru et al., Defendants-Appellees.
    (No. 72-236;
    Third District
    October 3, 1974.

      Louis Olivero, of Peru, for appellants.

      Helmig & Helmig, and Anthony C. Raccuglia, both of Peru, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiffs as adjacent property owners filed a declaratory judgment action seeking to void an ordinance of the defendant City which reclassified the subject property from residential to commercial, and to enjoin its enforcement.

After plaintiffs’ motion for a temporary restraining order was denied, an evidentiary hearing was held on the merits of the complaint seeking a permanent injunction. The court denied the relief sought by the plaintiffs. The trial judge in a written opinion held that the ordinance in question was a new ordinance and not an amendment to the existing zoning ordinance; that a zoning commission can be created by the passage of a resolution and not by an ordinance under the provisions of section 11— 13 — 2 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 11 — 13—2); that members of a zoning commission are de facto officers of a municipality; that the failure of the zoning commission to submit a final report and proposed ordinance within 30 days after the final adjournment of the public hearing does not invalidate the zoning ordinance, since the procedure as outlined in section 11 — 13—2 of the Code (Ill. Rev. Stat. 1973, ch. 24, par. 11 — 13—2) is merely directory and not mandatory; and that the passing of the new zoning ordinance was not an unreasonable, unwarranted or unauthorized invasion of plaintiffs’ property rights. Plaintiffs appeal.

They contend that if the zoning ordinance in question is construed as an amendatory ordinance, it fails to comply with sections 11 — 13—14 and 11 — 13—3.1 of tire Code (Ill. Rev. Stat. 1973, ch. 24, par. 11 — 13—14 and 11 — 13—3.1), requiring passage by a two-thirds vote of the city council, since protests were filed; and if considered a new zoning ordinance, it fails to comply with section 11 — 13—2 of the Code (Ill. Rev. Stat. 1973, ch. 24, par. 11 — 13—2) because the zoning commission was not formed as required by statute. A further claim of invalidity is based upon an alleged conflict of interest of a member of the zoning commission. Plaintiffs also contend that to allow construction of a McDonald drive-in restaurant on the subject property was an unreasonable and arbitrary taking of their property rights in adjoining property and amounted to a denial of due process. They also argue that in the absence of the presentation of any evidence by the city the court should have directed a verdict for the plaintiffs.

This is the second time that the reclassification of the subject property has been before the appellate court. (See Ceresa v. City of Peru (1971), 133 Ill.App.2d 748, 755.) In our resolution of this appeal, the threshold issue is whether the zoning ordinance which reclassified the property in question (referred to as number 1699) is a new ordinance as the trial court found, which was passed by the requisite majority vote (Ill. Rev. Stat. 1971, ch. 24, par. 3 — 11—17); or an amendment to an existing ordinance as claimed by plaintiffs, which failed to pass for lack of the required two-thirds vote over objection.

Prior to the time of the passage of ordinance 1699 on August 25, 1971, there existed an ordinance entitled “Zoning Ordinance of the City of Peru, Illinois, 1963,” referred to as ordinance number 1497. A planning commission had also been formed. On June 29, 1970, the city council of Peru approved a resolution authorizing the creation of a zoning commission. The resolution contained language expressing the purpose of amending the existing ordinance by adopting a comprehensive new zoning ordinance. After the resolution was adopted the members of the planning commission also became members of the zoning commission and assumed the same offices by their own vote and not by any other appointment. After the commission’s first meeting on July 2, 1970, notice was published calling for a public hearing to be held on July 22.

The July 22 public hearing was attended by several property owners, including Mr. Kaszynslti the owner of the subject property, who requested that their properties be given zoning classifications other than set forth in the proposed comprehensive amendment. The matter was adjourned until August 10 in order to hear further testimony from persons with further objections.

The final meeting of the zoning commission was held on February 10, 1971. Subsequently on March 8, 1971, chairman Biederstedt appeared personally and by letter and reported the efforts of the commission to the city council. The corporation counsel of Peru also read portions of the ordinance at that time, and again on March 22 and May 17. No final report of the zoning commission, however, was ever presented.

While no public protests were lodged at the public hearing, two petitions in opposition to reclassification of the Kaszynski property were submitted to chairman Biederstedt on June 2 and July 1, 1971. The record does not reveal whether they were also filed with the clerk of the municipality.

On August 23, 1971, the city council began consideration of the proposed amendment but because of the late hour it adjourned the matter to August 25. At that time several amendments to the proposal were discussed, including one concerning the subject property, resulting in an adoption of an amendment reclassifying that property commercial as requested. Following discussion the proposed comprehensive amendment as amended was adopted by a vote of 6 to 4. The minutes, of the meeting reflect that the council expressed concern that the provision had not been passed by a two-thirds vote; and the corporation counsel was requested to write an opinion. His letter of opinion was incorporated in the minutes of the September 7 council meeting and expressed the view that the provision was a new ordinance validly adopted by a majority vote.

Although the provision had been voted on as an amendment to the existing ordinance it was often referred to in discussions as a new ordinance and the matter was further obscured by the presence of two titles. Following the corporation counsel’s opinion letter, however, it was re-designated “zoning ordinance 1699.”

As a general rule, an amendatory ordinance does not purport to repeal an ordinance as it previously existed but merely changes or alters the original ordinance, or some of its provisions; and such portions of the old ordinance as are repeated or retained either literally or substantially are regarded as a continuation of the old ordinance, and not the enactment of a new ordinance nor the repeal of the former ordinance. (Village of Park Forest v. Wojciechowski (1963), 29 Ill.2d 435, 438.) The primary purpose of construction of ordinances is to determine and give full effect of the intent of the law-making body as revealed by the language used. (Gregory v. County of LaSalle (1968), 91 Ill.App.2d 290, 296-297.) The words employed should be given their plain and ordinary or commonly accepted or popular meaning unless to do so would defeat legislative intent. Droste v. Kerner (1966), 34 Ill.2d 495, 503.

The introductory clause of ordinance number 1699,

“Whereas the City of Peru, IHinois now desires to amend comprehensively its existing ordinance by adopting a new ordinance”

is ambiguous. The record shows that the document was referred to in the city council discussion both as a new ordinance and a comprehensive amendment, with the terms used interchangeably. But our analysis of the document in all its terms leads us to the conclusion that ordinance 1699 is the new ordinance, and not an amendment to an existing ordinance.

Whether an ordinance is amendatory is not determined by its title; nor is the reference to another ordinance in the title of the new provision determinative. (People ex rel. Abt v. Bowman (1911), 253 Ill. 234, 245.) An act is complete in itself as to the subject with which it deals when it is intelHgent and when upon examination without reference to other acts it discloses its purposes and its methods of carrying out those purposes. (People ex rel. Rusch v. Ladwig (1937), 365 Ill. 574, 581.) A subsequent statute revising the whole subject matter of a former statute and intended as a substitute for it, although it contains no express words to. that effect, operates as a repeal of the former act. City of Metropolis v. Gibbons (1929), 334 Ill. 431, 434; County of Du Page v. Molitor (1960), 26 Ill.pp.2d 232, 234-235.

A comparative analysis of former ordinance number 1497 (.containing 16 pages) with the new ordinance number 1699 (containing 115 pages) reveals the new provision to be complete and independent in itself. The format of the later act is entirely different from that of the previous ordinance and its provisions neither incorporate nor intermingle with those of ordinance number 1497. It fashions some 146 definitions as compared to the 52 appearing in the previous ordinance. No area covered by ordinance number 1497 is left unregulated by 1699 with the exception of certain procedural as opposed to substantive provisions. The new enactment totally displaces the former provision. In our view the trial court correctly found that ordinance 1699 was a new and not an amendatory ordinance and that it passed by the required majority of the votes of the legislative body.

We are also not persuaded by plaintiffs’ alternative argument that even if the ordinance is considered a new zoning ordinance the allegedly invalid method of forming the zoning commission requires reversal. Plaintiffs urge that because the zoning commission was formed by resolution and not by ordinance and because the commission did not submit tentative and final reports (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 13—2) that the acts of the zoning commission were invalid.

Defendants concede that the document established in the commission labeled “ordinance no. 1644” is a resolution. They claim however that a zoning commission can be effectively created by resolution. We agree.

Resolutions have been described as merely statements of opinion or ministerial acts; and it has been stated that ordinances are necessary for municipal legislation of a continuing nature. (Village of Gulfport v. Buettner (1969), 114 Ill.App.2d 1, 9.) This is not the case where the enabling statute does not require an ordinance to enact legislation. Houston v. Village of Maywood (1956), 11 Ill.App.2d 433, 439; Village of Hoffman v. Meier (1972), 4 Ill.App.3d 949, 952.

Contrary to plaintiffs’ views we do not read section 11 — 13—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 13—2) to require that a zoning commission may be created only by ordinance even though the term zoning ordinance appears in the section. Nor do we agree with the further argument of plaintiffs that the permanent nature of the commission and the capacity of the members as public officers requires creation by ordinance.

Plaintiffs’ analogy to section 11 — 12—4 of the Municipal Code relating to the establishment of planning commissions fails because the provision specifically refers to the creation, organizing and staffing of a planning department by ordinance. In contrast, section 11 — 13—2 of the Municipal Code is not explicit as to the creation of the zoning commission but states that the corporate authorities “shall provide” for a zoning commission. (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 13—2.) The language of the statutes which plaintiffs seek to compare refutes the claim of an equal degree of permanency. A planning commission remains in existence indefinitely once properly formed, while a zoning commission under the terms of the statute “shall cease to exist upon the adoption of a zoning ordinance for the entire municipality.” Chicago & Northern Pacific R.R. Co. v. City of Chicago (1898), 174 Ill. 439, 445, cited by plaintiffs does not suggest a different conclusion here. The creation of a zoning commission is an initial step. The final responsibility rests with the municipal authorities who may enact a proposed ordinance with or without changes or refer it back to the commission for further consideration. (Village of Bourbonnais v. Herbert (1967), 86 Ill.App.2d 637, 372-373.) The commission, which is to go out of existence when its work on the comprehensive zoning ordinance is finished, need not be established by formal ordinance since that requirement is neither express nor implied by necessary inference.

Plaintiffs’ argument directed at the procedures of the zoning commission would appear to be based upon a factual issue which was presented and decided by the Rial court. While there was no written report made to the city council by the zoning commission, it appeared that there was instant communication between the commission and the city council. In view of the lack of statutory guidelines as to what is compliance with the reporting requirements, the trial court’s finding of substantial compliance was not clearly against the manifest weight of the evidence and should be upheld.

Plaintiffs’ argument that the rezoning of the property in question was arbitrary and unreasonable takes several directions. They contend that they have made a prima facie case that the zoning is invalid but there is no substantial effort to point out in what way the rezoning offends the often stated and well known standards. And in fact it appears clearly from the record that the rezoning of the subject property is a reasonable legislative act. The record shows that the surrounding area contains a shopping center, a nearby service station and a law office, all with existing dependence on automobile traffic. See Mobil Oil Corp. v. City of Rockford (1972), 8 Ill.App.3d 649, 653-654.

Plaintiffs argue that they were entitled to a directed verdict because the defendants did not put in any evidence but rested after the presentation of the plaintiffs’ case. No authorities have been cited and we have found none which hold that a case for the defendants cannot be proved by the plaintiffs’ evidence. Here the court, after considering the evidence, did not conclude that the evidence showed that ordinance number 1699 was properly passed and that the presumption that the city had properly classified the subject property had not been overcome by plaintiffs’ evidence.

The rule for directing verdicts does not require that verdicts be directed merely because a defendant has failed to introduce evidence in his own behalf or has failed to dispute facts presented by the plaintiff. Facts may be undisputed or a defendant may have failed to introduce evidence, but it does not follow that issues are therefore uncontroverted. Undisputed facts may give rise to different reasonable inferences. See Galarza v. Melter (1969), 116 Ill.App.2d 173, 178; Ladd v. Ruck (1969), 108 Ill.App.2d 379, 382-383.

The main thrust of plaintiffs’ argument appears to be directed at the fact that a member of the zoning board had a business relationship with the zoning petitioner and that the conflict of interest prevented an impartial hearing before the zoning commission. However, in determining the validity of a municipal ordinance, the court is not generally concerned with and has no jurisdiction to inquire into the motives or to determine the propriety of the policy which prompted enactment of an ordinance. A recognized exception of this rule of abstention is that an ordinance may be impeached for fraud by persons injuriously affected by its application. (Anthony v. City of Kewanee (1967), 79 Ill.App.2d 243, 247.) Here, plaintiffs’ complaint and arguments do not allege fraud. A mere allegation of conflict of interest of a participating zoning commission chairman does not invalidate a final ordinance adopted by the city council, particularly since the recommendations and report of the zoning commission are not binding on a municipality. Ill. Rev. Stat. 1971, ch. 24, par. 11 — 13—2.

For the reasons stated, we affirm the judgment below.

Affirmed.

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


author: Mr. JUSTICE MORGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William H. Stinger, Jr., Defendant-Appellee—(William R. Ketcham, Appellant).
    (No. 73-79;
    Second District
    October 3, 1974.
    Gerry Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Jr., Assistant State’s Attorney, of counsel), for appellant.
    Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s. Office, of Elgin, for appellee.
   Mr. JUSTICE MORGAN

delivered the opinion of the court:

This is an appeal by William R. Ketcham, State’s Attorney of Kane County, from a finding of the circuit court of that county that he was in contempt of court. Based on that finding he was fined the sum of $100.

William H. Stinger, Jr., was prosecuted by indictment for the offenses of murder, attempted murder and armed robbery and was convicted and sentenced for each of these offenses on a plea of guilty. He has filed an appeal from such convictions.

Prior to the return of the indictment and upon the motion of the defendant’s counsel at the preliminary hearing an order was entered requiring the presence of a court reporter at any subsequent grand jury hearing concerning the defendant. No court reporter was present at the grand jury hearing which resulted in the indictment of the defendant. The defendant’s attorney tiren filed a petition for a rule to show cause why William R. Ketcham, State’s Attorney of Kane County, should not be held in contempt for his refusal to have a court reporter present and a rule to show cause was entered. After argument William R. Ketcham was found to be in contempt of court and was ordered and sentenced to pay a fine of $100. It is from this finding and order and fine that William R. Ketcham appealed.

The issue is whether the circuit com! had jurisdiction and power to order the presence of a court reporter at the grand jury proceedings. Certain it is that the State has no duty under Supreme Court Rule 412 to record grand jury testimony (People v. Lentz, 55 Ill.2d 517). Prior to fire enactment of Supreme Court Rule 412 the supreme court had held that there was no requirement that the testimony of witnesses before a grand jury be recorded, constitutional or otherwise (People v. Aughinbaugh, 36 Ill.2d 320). The Illinois cases are also supported by a number of Federal cases (United States v. Hedges (10th Cir. 1972), 458 F.2d 188; United States v. Schrenzel (8th Cir. 1972), 462 F.2d 765; and United States v. Kind (4th Cir. 1970), 433 F.2d 339).

The question in this case, however, is not whether there is a duty to record grand jury minutes but whether the circuit judge had the power and authority to in effect order the State’s Attorney to have a court reporter present at the expense of Kane County to transcribe the testimony. The appellee cites United States v. Thoresen (9th Cir. 1970), 428 F.2d 654, and United States v. Price (9th Cir. 1973), 474 F.2d 1223, as authority for the proposition that the court does have such power and authority. The Federal courts in the 9th circuit have a rule making the recording or transcribing of grand jury testimony permissive but not mandatory. The Price case holds that even though it is permissive and not mandatory the court cannot arbitrarily deny a motion to require the testimony to be recorded and transcribed without a hearing and without a proper finding. The State courts in Illinois have no such rule.

Section 112 — 6 of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 112 — 6) provides that “If no reporter is assigned by fhe State’s Attorney to attend fhe sessions of the Grand Jury, the court, on petition of the foreman and 11 other grand jurors, may for good cause appoint such reporter.” The appellant contends that this statute should be strictly interpreted and the only way a reporter should be brought in before a grand jury is for the State’s Attorney to assign one or for the court to appoint one upon such petition. The appellee on the other hand contends that under the supervisory powers of the court the order that was entered was perfectly proper and quotes extensively from the case of People v. Sears, 49 Ill.2d 14.

The question in this case is not whéther the court under its supervisory powers during the impaneling of the grand jury or shortly before that impaneling may on his own motion or on motion of defendant’s counsel assign a reporter or appoint a reporter to record the testimony of the witnesses before the grand jury and transcribe it; the question raised here is whether he has authority to order or require the State’s Attorney to assign one. The State’s Attorney by statute is charged with the commencement and prosecution of criminal cases in his county and he is granted certain discretionary powers. The Illinois Constitution divides the powers of government among the executive, legislative and judicial departments and provides that none of these should exercise powers belonging to the others (article II of the Illinois Constitution).

The State’s Attorney’s office is a part of the executive branch. It is clear that the judicial department may not take as its own those discretionary powers vested in an executive officer. (See People v. Henry, 20 Ill.App.3d 73, and People v. Rotramel, 5 Ill.App.3d 196, 198.) The State’s Attorney in performing his discretionary duties could assign or not assign a reporter to the grand jury as he saw fit or could assign it in certain cases and not in other cases or to certain witnesses and not to other witnesses. Accordingly, the comt exceeded its authority in entering the order that was entered.

The next question is whether or not conceding that it did enter an improper order, is the State’s Attorney nevertheless in contempt of court for failure to obey it? The appellee suggests that he had other remedies; that he could have filed a motion for a rehearing; or he could have filed a petition for mandamus and prohibition and that so long as the court has jurisdiction of the subject matter and the parties he is bound to obey the order entered. In Cummings-Landau Laundry Machinery Co. v. Koplin, 386 Ill. 368, 385-386, the court said: “The principle is of universal force that the order or judgment of a court having jurisdiction is to be be obeyed, no matter how clearly it may be erroneous. * * * It would certainly be an innovation and establish a dangerous precedent to hold that the power of a court to punish for contempt for a violation of its injunctional, or other, orders, is dependent upon the affirmance of such orders by the highest court to which an appeal might be taken.” In Faris v. Paris, 35 Ill.2d 305, 309, the court said: “One is justified in refusing to comply with a court order only if such order is utterly void, but it is no defense in a contempt proceeding to show that the order was merely erroneous.” In City of Chicago v. King, 86 Ill.App.2d 340, 354, the court said: # * contempt will not lie for violation of a void decree * * * but voidness is established when the issuing court is found to have lacked jurisdiction to enter such an order. * * * The test of jurisdiction is said to be whether the court has power to enter into the inquiry before it, and this is determined by (1) jurisdiction of the parties, (2) jurisdiction of the subject matter, and (3) power in the court to decide the particular matters presented. AH such factors being present, the correctness of the court’s determination has no bearing upon the initial question of jurisdiction.”

In this case there is no question about jurisdiction of the parties or jurisdiction of the subject matter. The question is whether the court had power to decide the particular matter before it and in effect order the State’s Attorney to assign a reporter to the grand jury. In People v. Smith, 5 IH.App.3d 429, the State’s Attorney was held in contempt of court and fined $25 for refusing to produce the totality of information relating to the defendants in the particular case before the court and the charges of which they were convicted. The State’s Attorney did not comply with that order and in fact refused to comply with it. The court found in that case that the trial court had exceeded its power in entering such an order and the court looked to the validity of the underlying order to determine whether or not the respondent was in contempt of court. The Supreme Court reached a like result in People v. Sears, 49 Ill.2d 14, where the special State’s Attorney was found in contempt of court and fined for failure to subpoena all of the witnesses that were subpoenaed and heard by the Federal grand jury and in violation of the circuit court’s order. A like result was, also, reached in People v. Ryan, 30 IH.2d 456.

Section 112 — 6 of the Code of Criminal Procedure provides that the court on petition of the foreman and 11 other grand jurors may for good cause shown appoint a reporter. It may very well be that under the supervisory powers of the circuit court that the court could in its discretion upon proper motion or otherwise appoint a reporter to attend the session of the grand jury and transcribe the testimony. It is one thing, for the court to appoint a reporter under the statute upon a proper petition and quite another thing to order the State’s Attorney who is a separate constitutional officer to assign a reporter.

Accordingly it is the judgment and finding of this court that the trial court exceeded its powers in ordering and directing the State’s Attorney to assign a reporter at any grand jury hearing concerning the defendant. This court has the right in that situation to look to the validity of the underlying order. It does hereby determine that the underlying order was entered without authority. Accordingly, the finding and judgment of contempt was erroneous and is hereby reversed.

Judgment reversed.

EBERSPACHER and CREES, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Witvoet, Defendant-Appellant.
    (No. 73-77;

    Third District
    October 4, 1974.
    Albert Witvoet, pro se.

    Brace Falk, Assistant State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant-appellant, Albert Witvoet, was found guilty by a jury of driving a motor vehicle while his privilege to do so had been suspended and also for driving in violation of a traffic control device. The circuit court of Will County sentenced defendant on the first charge to 1 year conditional discharge with 15 weekends to be served in the county jail and on the second offense fined him $10. The defendant pro se has appealed the judgment and sentence assessed on the charge of driving while his license was suspended.

On February 20, 1972, the appellant, Albert Witvoet, was stopped by a State trooper for disobeying a traffic control device. The officer then asked for his drivers license and Witvoet displayed a license that had been issued August 28, 1957. The officer ran a license check which came back as an unsatisfied judgment suspension dated July 17, 1964. Witvoet was issued two citations, one for disobeying a trafile control device and one for driving while his license was suspended. On February 28, 1973, Witvoet was found guilty after a jury trial of both offenses and on March 14, 1973, he was sentenced as indicated above.

On this appeal defendant argues the trial court erred in refusing to admit some of his exhibits and also urges the court erred in denying his motion for a continuance. It is our conclusion the trial court did not commit any error in either respect.

When a person is charged with driving while his license has been suspended in violation of section 6 — 303(a) of the Vehicle Code (Ill. Rev. Stat. 1971, ch. 95V2, par. 6 — 303(a)) it is only necessary to prove that his license to do so had been suspended and that he was driving a motor vehicle. People v. Dillingham, 111 Ill.App.2d 161, 249 N.E.2d 294.

In reviewing the reasons urged by the defendant in support of his claim of trial court errors it appears to us the defendant has admitted his license had been suspended and that he was driving a motor vehicle at the time of his citation. What defendant does claim is that his license should not have been suspended by the Secretary of State, that the suspension order was erroneous and that because of such erroneous suspension he should not have been found guilty of the offense charged.

It appears that at the time defendant moved for a continuance it was for the purpose of having some persons from Springfield testify in his behalf. Although the question is not clear, it appears that defendant hoped such witnesses might offer some testimony relative to the alleged error in the suspension of his license. The exhibits which the trial court declined to admit also relate to defendant’s claim his license was suspended in error. Since none of the exhibits or arguments of the defendant regarding potential witnesses in. any way suggests the suspension order was void or that the Secretary of State exceeded his jurisdiction in suspending the license, we do not agree with defendant that the trial court erred or could have erred regarding such exhibits or witnesses.

From defendant’s own argument it appeal's he was aware that his license had been suspended because in fact he had been convicted on two previous occasions for the same offense. Apparently defendant had not taken proper action regarding the suspension order until after his arrest in the instant case. As a consequence of this violation proceeding defendant did seek relief from the Secretary of State and on July 6, 1973, several months after his conviction in the instant case, the order suspending his license was vacated by the Secretary of State.

While we agree with the prosecution that the subsequent action by the Secretary of State can not and does not have any effect on the defendant’s conviction, it is our belief that the sanction imposed by the trial court should be reconsidered in light of the order of the Secretary of State vacating the suspension of defendant’s license.

For the foregoing reasons, the judgment of conviction of defendant by the circuit court of Will County is affirmed but the sentence entered pursuant to such conviction is vacated and the cause is remanded to such court for reconsideration of the sentence to be imposed.

Judgment affirmed in part, reversed in part and remanded with directions.

ALLOY and DIXON, JJ„ concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Keith Smith et al., Defendants-Appellees.
    (No. 12331;
    Fourth District
    October 3, 1974.

      Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, Assistant State’s Attorney, of counsel), for the People.
    John M. Bookwalter, of Danville, for appellee Smith.
    Joseph P. Skowronsld, of Danville, for appellee Cole.
    Horace E. Gunn and Robert Z. Hickman, both of Danville, for appellee English.
    William E. Nelson, of Hoopeston, for appellee Jurszak.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The circuit court of Vermilion County dismissed a one-count indictment charging the defendants with the offense of conspiracy to commit perjury. We affirm.

The indictment in this case is based upon tire use by the defendants of “Affidavit and Application for Ballots by Physically Incapacitated Elector and Affidavit of Attending Physician.” (Ill. Rev. Stat. 1971, ch. 46, pars. 19 — 2 and 19 — 3.) Defendant Smith was charged with directing one McDowell to take a pad of such forms to the defendant English, a medical doctor, and obtain his signature on such forms as attending physician; that the physician’s affidavit stated that he had examined the person named in the application and that he verily believed that such person would be physically incapable of being present at the polls on election day; that the defendant Cole received various such affidavits executed and partially executed and bearing the signature of the defendant doctor and then did sign her name and affix her seal in her capacity as a notary public when she knew that the statement of the doctor over his signature was false and knew that the form would be used to obtain a valid ballot to be used in the primary election; that the defendant Helen Jurszak tiren took these applications together with ballots and incapacitated ballot envelopes and obtained the signatures of various and sundry people on the application and on the incapacitated ballot envelope when she well knew that no physical examination had been made of the elector by the doctor and well knew that the form would be notarized and used for obtaining a valid ballot to be voted at the election.

The defense asserts that nowhere in the indictment does it charge inferentially or otherwise that the doctor was sworn or affirmed when he affixed his signature to the application and that he at no time appeared before anyone authorized to administer oaths. The defense in short is no oath, no perjury, no conspiracy. The facts charged in the indictment, if true, portray reprehensible and morally indefensible conduct on the part of these defendants and a studied course of conduct to frustrate the election laws and contaminate the election process. This, however, cannot per se be the stepping stone for a sufficient indictment for conspiracy to commit perjury.

Conspiracy is defined in Section 8 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 8 — 2), in part as follows: “(a) Elements of the offense. A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense.” Under section 32 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 32 — 2), perjury is defined as “A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he maíces a false statement, material to the issue or point in question, which he does not believe to be true.” The statute under the Criminal Code is substantially the same and was incorporated by reference in section 29A of the Election Code. (Ill. Rev. Stat. 1971, ch. 46, par. 29A — 3.) All of article 29A entitled “Penalties” was repealed effective October 1, 1973. (Ill. Rev. Stat. 1973, ch. 46, par. 29 — 1.) It should be here noted that in section 29 — 10 of such statute referring to perjury, the word “certificate” was added in 1973 and provided therein that any person who makes a false statement material to the issue or point in question, which he does not believe to be true, in any affidavit, certificate, or sworn oral statement required by any provision of this Code, shall be guilty, etc. Thus, at the time of the indictment in this case, a “certificate” even though false was not perjury under the Election Code and was not made perjury until the effective date of the present statute on October 1, 1973. Until that date, therefore, a “certificate” by a physician of incapacity was not required to be under oath or affirmation. Since no oath or affirmation was taken by the doctor here, and since no such oath or affirmation was required by the Election Code at the time he signed the blank certificate, it seems clear that the indictment does not bring any of the defendants within the statute defining perjury. It should also be noted that section 19 — 1 of the Election Code as it was in 1971 required the attending physician’s “certificate” of incapacity of the voter but did not require that that certificate be given under oath' or affirmation. Thus the present indictment states no facts which are in violation of section 32 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 32 — 2), and it was not until October 1, 1973, that a false certificate of the attending physician was defined as perjury in the Election Code. The indictment merely charges a conspiracy to do acts which did not as a matter of law constitute perjury. Without a valid substantive crime, a necessary element of conspiracy is missing.

Since it is conceded that the doctor appeared before no one authorized to administer oaths, it is apparent that the blank certificate is not an affidavit. “An affidavit is simply a declaration, on oath, in writing sworn to before some person who has authority under the law to administer oaths. A writing which does not appear to have been sworn to before any officer does not constitute an affidavit.” (2 I.L.P. Affidavits § 2, at 648 (1953).) In 29 I.L.P. Perjury § 15 (1957), at pages 529-530, it is stated: “In order to constitute the offense of perjury, the false testimony must have been given under the sanction of an oath administered by some one having legal authority to do so.” (Emphasis supplied.) There is no such allegation in this indictment that such was done or that such was ever intended.

Assuming without deciding that the doctor’s signature on the blank form could be said to be a “certificate” of incapacity, we would point out that under the statute as it existed in 1971 such a false certificate was not perjury either under the Election Code or under the Criminal Code. Such a certificate today would be perjury as now defined in the Election Code. Neither could it be an offense under the Criminal Code because no oath or affirmation was required by the Election Code on an attending physician’s certificate of incapacity prior to October 1, 1973.

It is of course true that conspiracy to commit perjury does not need to be as specifically stated or established as perjury itself. Perjury, however, is different from other crimes for the simple reason that it is an offense which “can be committed only by the use of words; the words used are both the offense and the means by which the offense is committed. Perjury thus differs from burglary, for example, in which the validity of the indictment does not depend on whether the unlawful entry was through the front door, the rear door or a window, and from murder, in which the validity of the indictment does not depend on whether the victim was killed by strangulation, by stabbing or shooting.” (People v. Aud, 52 Ill.2d 368, 370-371, 288 N.E.2d 453.) These latter offenses are sufficiently charged by using the language of the statute creating the crime. Not so in perjury where the means used are integral parts of the offense as they necessarily are in perjury and must be stated. The alleged object of a conspiracy may not be charged as a substantive crime in the words of the statute and may not be so charged as the object of a conspiracy. People v. Isaacs, 37 Ill.2d 205, 226 N.E.2d 38.

We took with this case a motion by the State to supplement the record by attaching a copy of the blank affidavits to the indictment as an exhibit. The motion is denied as the circuit clerk states it was not attached to or filed with the indictment as originally filed in the clerk’s office and its substance is sufficiently alleged in the indictment.

We necessarily conclude that the indictment does not state a cause of action and that the action of the trial judge in dismissing the indictment was correct.

Affirmed.

TRAPP and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger L. Knell, Defendant-Appellant.
    (No. 72-206;
    Second District
    September 19, 1974.

      Rehearing denied October 23, 1974.

      Ralph Ruebner and Adam Lutynski, both State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.


author: Mr. PRESIDING JUSTICE T. MORAN Mr. JUSTICE SEIDENFELD,

text:
    The People of the State of Illinois, Plaintiff-Appellee v. Kenneth Wayne Godsey, Defendant-Appellant.
    (No. 72-291;
    Second District
    September 24, 1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, and James W. Jerz and Martin Moltz, both of Model District State’s Attorney’s Office, of Elgin, for the People.
   Mr. PRESIDING JUSTICE T. MORAN

delivered the opinion of the court:

A two-count indictment charged defendant with burglary and theft in excess of $150. On June 10, 1971, the court accepted a negotiated plea of guilty to the theft count. On June 14, 1971, defendant was sentenced to 3 years’ probation. Seven months later (January 14, 1972), defendant’s probation was revoked and he was sentenced to serve a term of 2 to 6 years.

Defendant here, for the first time, challenges the legality of his initial conviction which was entered 18 months prior to appeal. (Due to findings herein, it is unnecessary for us to consider the length of time between the original judgment of conviction and defendant’s present request, but see People v. Johnson, 12 Ill.App.3d 511, 512 (1973).) Defendant takes cognizance of our decision in People v. Nordstrom, 73 Ill.App.2d 168, 172-77 (1966), appeal dismissed,, 37 Ill.2d 270 (1967), but urges that we relax that holding and allow him, at this time, to attack the sufficiency of the admonition which the court delivered prior to the acceptance of his guilty plea. Unlike Nordstrom, the defendant here has not filed a notice of appeal from the original judgment of conviction. Supreme Court Rule 606(a) (Ill. Rev. Stat. 1971, ch. 110A, § 606(a)) clearly states, in part, that “No step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional.” Inasmuch as no notice of appeal was ever filed by defendant, this court has no jurisdiction to entertain a review of the initial judgment. People v. Williams, 16 Ill.App.3d 111 (1973); People v. Floyd, 14 Ill.App.3d 1009, 1011 (1973).

The basis for the revocation of probation is revealed by the transcript.

“The Clerk: People of the State of Illinois versus Kenneth Wayne Godsey, Defendant, Case No. 1425.
The Court: What is the status of this case?
[Defendant’s counsel]: He has been served with a petition to vacate, your Honor, and we are ready to admit the allegations in the petition.
The Court: Is that true, do you want to admit the allegations that are here?
The Defendant: Yes.
The Court: One of the charges is that on the 15th day of November, 1971, one Kenneth Wayne Godsey committed the offense of burglary in that he without authority knowingly entered into the building of Rodney Dahlberg, Rural Route 1, Durand, Illinois, with intent to commit therein a theft or felony. You admit that, do you?
The Defendant: Yes, I took some tools out of a shed.
The Court: How did you get into the place?
The Defendant: It was open.
The Court: Was it night or daytime?
The Defendant: It was night.
The Court: The other charge is that on the 21st day of November, 1971, one Kenneth Wayne Godsey committed the offense of burglary in that he without authority knowingly entered into the dwelling house of Rodney Dahlberg, Rural Route 1, Durand, Illinois, with intent to commit therein a theft or felony.
Do you admit that?
The Defendant: Yes, sir.
The Court: What did you do, go into the house?
The Defendant: Yes. We had a key. Went in and took the colored TV.
The Court: You had a key that opened the door?
The Defendant: Yes, sir. ,
The Court: Did anybody give you authority to go in there?
The Defendant: No.
The Court: Then you went there for the purpose of taking the TV set?
The Defendant: Yes, sir.
The Court: About what was the value of the TV set?
The Defendant: I have no idea,
The Court: Was it over $150?
The Defendant: I would imagine so.
[Asst. State’s Atty.]: Our reports indicate, your Honor, it was a color TV combination stereo, AM and FM which would be over $150, well over $150.
The Court: Well, it was a burglary anyway.
[Asst. State’s Atty.]: Yes.
The Court: Well, on the admission of committing two felonies while on probation, the Court will revoke and terminate the probation.”

The law at the time the trial court conducted this hearing was stated in People v. Thornton, 4 Ill.App.3d 896, 897 (1972), wherein the guidelines for the revocation procedure were set forth as:

“‘(1) The defendant must be notified of the alleged violations of his probation; (2) The defendant must be given an opportunity to defend against, and to refute, the alleged violations; (3) The State, having the burden of proof, must prove the alleged violations by the preponderance of the evidence by competent evidence; (4) A conscientious judicial determination must be made according to accepted and well recognized procedural methods.’”

Subsequent to the revocation of defendant’s probation, the case of People v. Pier, 51 Ill.2d 96 (1972), was decided. The case concerned a post-conviction proceeding in which the defendant’s petition alleged that his admission of violation of probation was induced by the State’s unfulfilled promise to recommend a sentence other than that which was imposed. The trial court dismissed the petition without an evidentiary hearing. On review, the court, at page 100, held:

“[D]ue process of law requires that a defendant charged with having violated his probation be entitled to a conscientious judicial determination of the charge according to accepted and well recognized procedural methods.”

For those accepted and recognized procedural methods which constitute due process, the court referred to ABA Standards for Criminal Justice, Probation, sections 5.4 and 5.4(a) (approved draft 1970). The suggested standards were not new to Illinois jurisprudence. They merely gave substance to that which had been our practice since 1960 when the case of People v. Price, 24 Ill.App.2d 364, was decided.

In approving the then-existing practice, Pier went on to state:
“Justice demands that [defendant] also be entitled to the protection of the same due-process requirements which pertain to pleas of guilty when he waives his right to a judicial determination of the charge that he violated his probation and confesses or admits the charges of the revocation petition.” (51 Ill.2d at 100.)

Relying upon this quotation, defendant claims that the trial court committed reversible error when it failed (prior to defendant’s admissions at the revocation hearing) to admonish him in accordance with Supreme Court Rule 402 (pleas of guilty).

To adopt defendant’s interpretation, we would have to assume that the Supreme Court intended (1) that Rule 402 procedures be applied to hearings on revocation of probation as well as to hearings on pleas of guilty, and (2) to apply Blackstone’s theory that the rule pronounced in Pier was always the law and entitled to retroactive effect.

This court has held that the procedures prescribed by Rule 402 are not applicable to hearings on revocation of probation (People v. Evans, 3 Ill.App.3d 435, 437 (1972); People v. Blake, 15 Ill.App.3d 39, 41 — 43 (1973).) In each of these cited cases, the record disclosed that the defendant’s admission had been made voluntarily. Pier enunciated this as a requirement. To assure the protection of due process to those who confess or admit to the charges contained in a petition for revocation, and because of the possibility of incarceration, Pier serves to insure the voluntariness of a defendant’s admission during a revocation hearing in much the same manner as Rule 402(b) insures the voluntariness of a plea of guilty. Where revocation of probation is founded solely upon defendant’s admission, there is no controversy. Therefore, in order for there to be a conscientious judicial determination, Pier requires that that the trial court ascertain that the admission is voluntary.

In the instant case defendant does not suggest nor does our review reveal that his admissions were made involuntarily. His hearing on revocation (conducted prior to the Pier ruling) did not include the precautions prescribed by Pier but was conducted in accordance with the procedural rules then in effect. The issue of whether the Pier requirement should be applied retroactively has been raised in Illinois but not resolved. The case of Halliday v. United States, 394 U.S. 831, 23 L.Ed.2d 16, 89 S.Ct. 1498 (1969), wherein retroactive effect was denied, is directly on point and we therefore hold that, where voluntariness is not in issue, the rule of procedure announced in Pier was intended to be. given prospective application from the date of the decision (March 21, 1972). The order revoking defendant’s probation is therefore affirmed.

Pending appeal, defendant moved that we summarily reduce his sentence to a term of 1 to 3 years on the basis that the Unified Code of Corrections, effective subsequent to his sentencing, applies whenever the sentence is “less than under the prior law upon which the prosecution was commenced.” (Ill. Rev. Stat. 1973, ch. 38 §1008 — 2—4.) Inasmuch as the new Code did not alter the penalty previously provided for theft in excess of $150, the motion is denied.

Defendant later moved for modification of his sentence, seeking to be credited for time served in the county jail prior to probation and for the time spent on probation. (Ill. Rev. Stat. 1973, ch. 38, § 1005— 6 — 4(h).) Defendant, however, has overlooked the fact that a condition of his probation was that he serve 8V2 months in the county jail “with credit for eight and one-half (8Y2) months served.” He has, therefore, already received credit for his time spent incarcerated and that part of the motion is denied.

In People v. Decker, 15 Ill.App.3d 230, 232 (1973), we held that the credit-toward-sentence provision of section 5 — 6—4(h) of the Code (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 6—4(h)) was applicable to time served on probation. We see no reason to depart from that holding; therefore, that portion of the motion is allowed.

Judgment is affirmed and the cause is remanded with directions to resentence defendant in accordance with the views expressed herein.

Judgment affirmed; cause remanded with directions.

Mr. JUSTICE SEIDENFELD,

with whom Mr. JUSTICE RECHEN-MACHER joins, specially concurring.

I concur in the result. I do not fully agree, however, with the statements in the opinion which enunciate the requirements allegedly added by People v. Pier (1972), 51 Ill.2d 96. Since we have held that Pier does not apply retroactively, I would prefer to express our interpretation of Pier in an applicable case.

       The issue was raised in People v. Lewis, 14 Ill.App.3d 1083, 1086 (1973), but because the defendant had been admonished as to the consequences of his admissions it was unnecessary for the court to pass upon the issue.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond G. Kohl, Defendant-Appellant.
    (No. 72-341;
    Second District
    September 24, 1974.
    David E. Bmnn, of Elmhurst, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert A. German, Defendant-Appellant.
    (No. 73-331;
    Third District
    September 25, 1974.
    James R. Standard, Public Defender, of Monmouth, for appellant.
    Fred R. Odendahl, State’s Attorney, of Monmouth, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

After a bench trial Robert German, defendant-appellant, was found guilty of driving while intoxicated and was fined $300 by the circuit court of Warren County. He was found not guilty of the charge of disregarding a stop sign. On this appeal defendant argues the court erred in failing to exclude witnesses pursuant to his motion and also that he was not proved guilty of the offense charged beyond a reasonable doubt. This case arises from an incident occurring in the city of Monmouth on January 4, 1973. The truck which defendant was operating was involved in a collision with a police car as it was being operated by a Monmouth city policeman. The collision resulted in property damage to the right side of the police car and the front end of the truck but there were apparently no injuries to the occupants of either vehicle.

Officer Clark, the driver of the police car, signed the complaint against the defendant charging him with disregarding a stop sign. Officer Anderson who was summoned to the scene of the collision to aid in the investigation of the incident signed the complaint charging the defendant with driving while, intoxicated.

At the trial before the court without a jury five witnesses testified for the prosecution. Three of the witnesses were occupants of the police car, two were police officers and the third was an off-duty radio operator.

Officer Anderson was the fourth witness to testify and the fifth witness was a citizen who testified seeing defendant driving the truck. Each of the four police officers expressed the opinion that the defendant was under the influence of intoxicating liquor.

After the case was called for trial and the witnesses sworn defendant moved that witnesses be excluded from the courtroom prior to their giving testimony, which motion was granted by the court in part. The court excluded all of the witnesses except the two police officers who had signed the complaints and declined to exclude either of these officers while the other was testifying. This ruling is assigned as error.

It is well established that it is not reversible error for a trial judge in the exercise of sound judicial discretion to exempt a police officer in the absence of a showing of prejudice to the defendant. (People v. Strother, 53 Ill.2d 95, 290 N.E.2d 201, and People v. Jackson, 58 Ill.App.2d 302, 208 N.E.2d 385.) While it might have been the better policy not to have had both pohce officers present during the period when other witnesses were testifying on behalf of the prosecution, nevertheless we neither believe the trial court erred nor that any prejudice resulted by the procedure adopted by the trial court.

With respect to defendants’ other assignment of error, namely, that the evidence is insufficient to support the conviction, it is our opinion that this objection is without merit. It would serve no useful purpose to set forth at length the testimony of the three police officers and the off-duty radio operator. Each offered his opinion that the defendant was intoxicated and in support thereof described his observations of the defendant, the period during which these observations were made, and included testimony regarding the appearance and conduct of the defendant for varying periods after the collision. Such testimony included the observations that defendant smeHed of alcohol, was flushed, had red eyes, had watery eyes and had slurred speech. No tests were administered to determine the defendant’s blood alcohol content and it did not appear that he staggered, was unable to walk or was otherwise impaired in the use of his motor faculties.

In arguing the insufficiency of the evidence the defendant has referred to the experience of the officers, the time periods of observation discrepancies in the testimony as well as the paucity of evidence concerning any physical impairment of the defendant. The matters referred to by the defendant go to the credibility of the testimony and in our opinion do not render the testimony of any of the witnesses inherently improbable or unreasonable. Whatever weaknesses there might have been in the testimony were argued at length before the trial court and we find no reason for disturbing the judgment against the defendant.

For the foregoing reasons, the judgment of the circuit court of Warren County is affirmed.

Judgment affirmed.

ALLOY and DIXON, JJ., concur.