text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Alan Cody, Defendant-Appellant.
    (No. 73-401;
    Fifth District
    October 11, 1974.

      Robert Farrell and Gordon Berry, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Mary Jane Reynolds Webb, State’s Attorney, of Vienna (Darrell L. Conley, of Model State’s Attorneys Support Unit, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant-appellant, Albert Alan Cody, pled guilty to the crime of unlawful possession of more than 25 grams of a substance containing barbital, in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat., ch. 56%, § 1402(b)), after a negotiated plea. Defendant was sentenced to serve 1 to 6 years in the penitentiary concurrent with a sentence which defendant was presently serving, and he now contends that the trial court of Johnson County committed reversible error by failing to determine whether there was a factual basis for his plea prior to entering final judgment on his plea as required by Supreme Court Rule 402(c).

Pursuant to the negotiated plea, the charges brought in count II and count III of the information were dismissed by the State. Count I of the information, to which the defendant pled guilty pursuant to the negotiated plea, stated as follows:

“The State’s Attorney of said county charges: Count I that on September 25, 1973, in Johnson County, Albert Alan Cody committed the offense of unlawful possession of controlled substance in that the said defendant did knowingly and unlawfully have in his possession more than 25 grams of a substance containing Bar-bital, otherwise than authorized in the Controlled Substance Act, in violation of Para. 1402B, Chap. 56Vz, Ill. Rev. Statutes.”

The record in this case reflects that the following exchange took place between the trial court, the State’s Attorney, the defendant, and the defendant’s attorney:

“The Court: The Court accepts your plea. Mrs. Webb, is there any factual basis for this plea?
Mrs. Webb: Yes, sir. Your Honor, if witnesses were called, they would testify that on September 25, 1973, in Johnson County, Albert Alan Cody committed the offense of unlawful possession of controlled substance in that said defendant was apprehended having knowingly and unlawfully in his possession more than 25 grams of a substance containing Barbital, otherwise than is authorized by the Controlled Substance Act.
The Court: You have heard this lady state what her testimony would be, in fact, is that true?
Answer: Yes, sir.
The Court: Mr. Defense Counsel, do you stipulate there is a factual basis for this plea?
Mr. Hubbler: Yes, on the strength of the defendant’s statement to the court.
The Court: Let the record show there is a factual basis for this plea * *

The State’s Attorney, in answer to that trial court’s question recited almost verbatim the charge set forth in count I of the information, prefacing such recitation with the phrase, “* * * if witnesses were called, they would testify that,” then appears the recitation.

In previous cases, the courts have attempted to eliminate what appears to be some confusion between the determination of the “factual basis” of the plea (required by Supreme Court Rule 402(c)) and the determination of whether the defendant understands “the nature of the charge” (required by Supreme Court Rule 402(a)(1)). These two separate requirements have been distinguished in People v. Edmonds, 15 Ill.App.3d 1073, 1078-79, 305 N.E.2d 346, as follows:

“In order to comply with Rule 402(a), the trial court should direct inquiries to the defendant personally to be sure that the defendant understands the nature of the charges against him prior to accepting the plea of guilty. However, Rule 402(c) places an additional duty on the trial judge. He should not only make sure that the defendant knows and understands what he is pleading guilty to, but the judge should determine prior to entering final judgment that the conduct of the defendant is sufficient to sustain the charge to which the defendant pleads guilty.” (Emphasis added.)

In People v. Hudson, 7 IH.App.3d 800, the court held that in the requirement of Rule 402(c) all that is necessary is that the record show that there is a basis for reasonably concluding that the defendant actually committed the acts with the intent required to constitute the offense to which the defendant is pleading guilty. The judgment may utilize any appropriate procedure which will assure a record that demonstrates there is a factual basis for the plea.

The court in compliance with the rules determined that the defendant understood the nature of the charge and advised the court through his counsel that a plea had been negotiated, in which negotiations the defendant had concurred. The defendant then waived a hearing in mitigation and a presentence investigation.

The court then considered the question of a factual basis for the plea. The language of the information and that of the State’s Attorney’s recitation was not so complex as to not be understood by a layman who would have no difficulty understanding the charge. Defendant’s counsel acquiesed in the recitation by the State’s Attorney, and there is nothing in the record indicating an inability by the defendant to understand the facts so stated. Consequently, there was substantial compliance with Supreme Court Rule 402(c) for the trial court to ascertain the existence of a factual basis for the plea.

The defendant also contends that he should be permitted to plead anew on the ground that prejudicial error resulted from submission by the State’s Attorney and the trial court of an official statement to the Department of Corrections. However, nowhere in the defendant’s brief is it stated that the State’s Attorney promised to the defendant that she would not submit an official statement concurred in by the trial court to the Department of Corrections. An official statement is not a mandatory part of the record on appeal under Supreme Court Rule 608. (People v. Hawkins, 3 Ill.App.3d 359). The question of the contents of an official statement was raised in People v. Chaney, 2 Ill.App.3d 675, 679, 680, and the court stated:

“We note that defendant does not suggest how the trial court might have admonished him as to the contents of the Official Statement which was to be prepared subsequent to the imposition of sentence; * * *.
# e #
The admonishment of a defendant as to the consequences of his plea, within the meaning of the cited Rules and case law on the subject, does not comprehend that he be instructed, lectured and reminded of each and every factor which might possibly or conceivably affect the decision, at a later date, of the Parole and Pardon Board to either grant or deny parole.”

The judgment of the Circuit Court of Johnson County is affirmed.

Judgment affirmed.

G. MORAN, P. J., and EBERSPACHER, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIXON

license: Public Domain

text:
      In re Organization of the Fox Valley Community Airport Authority—(The County of Du Page et al., Appellants.)
    (No. 74-181;
    Second District
    October 10, 1974.

      John J. Bowman, State’s Attorney, of Wheaton (Francis Fiore and Charles E. Ruth, Assistant State’s Attorneys and Duane Walter, of counsel), for appellants. :i-;
    Gerald M. 'Sheridan, of Wheaton, and Robert F. Casey, of Geneva, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

A number ,of electors filed a petition to incorporate the Fox Valley Community Airport Authority -and for holding an election on that question. After notice, proceedings were held on the petition, and the Circuit Court of Kane-County found the petition adequate and ordered an election to., take place. The objectors have appealed from the order' calling for the election.

The threshold question presented to this court is whether we have jurisdiction to entertain this appeal. It is the duty .of an appellate court first to determiñe that an appeal properly lies before it before going into the merits-of the case. (Clark v. State Police Merit Board, 5 Ill.App.3d 332:) Petitioners have moved to dismiss. the. appeal contending that the order for an election'. Is not , a final judgment within the meaning of Supreme Court Rule 301. There is ,no contention by appellants that this is an interlocutory appeal within the meaning of Supreme Court Rules 307 or 308. Each party assumes the proceedings are directly reviewable. They disagree, however,'at what stage such review is permissible. -

Proceedings for establishment of airport authorities are held in accordance with the provisions of an act entitled “An Act in relation to airport authorities” (Ill. Rev. Stat. 1973, ch. 15%, par. 68.1 et seq.). No provision for appeal is contáined ih the Act. The Act lends itself readily to review •both after the order cálling for election ánd after the circuit Court by order determines" the results of the election. McQuilliñ considers the later order the conclusive one. (1 McQuillin, Law of Municipal Corporations § 3.39 (3d ed. 1971).) The question appears to be one of first impression in Illinois. No authorities are cited by either of the parties which are directly in point. We have found none. Many similar statutés providing for the creation of municipal corporations do not provide when, if at all, review by appeal is permissible (Ill. Rev. Stat. 1973; ch. 42 par. 247 et seq. (sanitary districts); ch. 24, par. 2 — 3—5a et seq. (incorporation of villages in large counties); ch. 34, par. 5201 et seq. (tuberculosis sanitarium districts); ch. 57%, par. 1 et seq. (forest preserve districts); ch. 85, par. 1651 et seq. (solid waste disposal district); ch. 105, par. 2 — 1 et seq. (park districts). In the Municipal Code, the statutes providing for the incorporation of cities specifically provide for appeal. Ill. Rev. Stat. 1973, ch. 24, par. 2 — 2—7.

Prior to the adoption of the Judicial Article (Ill. Const., Art. VI, effective January 1, 1964) it is clear that proceedings for the formation of. municipal corporations could be reviewed only in whatever manner, if any, provided by tire statute itself. (Heaney v. Northeast Park District, 360 Ill. 254, 258; Bradford Supply Co. v. Waite, 392 Ill. 318.) It is now equally clear that the basis for the right of appellate review in Illinois is in the constitution and not in the statutes. Hamilton Corporation v. Alexander, 53 Ill.2d 175, 178.

The creation of municipal entities is a civil proceeding sui generis and totally within the control of the legislature. However, the acts of the judge in respect to incorporation are judicial in character, including the conduct of the election, the canvass of the returns and a determination and declaration of the result of the election (People ex rel. Seegren v. Sackett, 351 Ill. 363, 370, 371); the final judicial act would be the determination and declaration of the result of the election. Heaney, supra.

The line of cleavage between final and interlocutory orders is not yet scientifically prescribed and the definitions and pronounced tests must be considered primarily with reference to the facts of a particular case and the relief sought in the pleading. (2 I.L.P. Appeal and Error §§ 105 — 108 (1953).) The policy of limiting appellate jurisdiction to review appeals from final judgments is that litigation should not proceed piecemeal, that intermediate appeals unduly delay the final disposition of litigation and that a complete disposition in the trial court may make an appeal moot. 4 C.J.S. Appeal and Error § 92, at 244 (1957).

The substance of and purpose of the proceedings in the instant case are for the creation of an airport authority which is not effected, at least until the vote is canvassed. This is the real relief the petitioners seek. The election is but one of the steps in the process of bringing into existence the Authority and until the process is concluded there can be no finality. Cf. Slack v. City of Salem, 31 Ill.2d 174; Damon v. Barker, 239 Ill. 637.

Appeal dismissed.

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

         Pending this appeal the election was held, a majority of the votes- were in favor of the establishment- of the-.Authority. A quo warranto'proceedirig to test the legality of the formation of the Authority is pending, *-.. • ■

       An earlier line of cases held the duties of the judge not judicial. People ex rel. Longenecker v. Nelson, 133 Ill. 565, 602; Village of Averyville v. City of Peoria, 335 Ill. 106, 110; Milstead v. Boone, 301 Ill. 213, 218.

         See Brauer Machine and Supply Co. v. Parkhill Truck Co., 383 Ill. 569; Barnhart v. Barnhart, 415 Ill. 303, 309.


author: Mr. JUSTICE HOFFMAN

text:
    Central Telephone Company of Illinois, Plaintiff-Appellee, v. Amedio Ritacca & Sons, Inc., Defendant-Appellant.
    (No. 73-89;
    Second District
    October 17, 1974.

      Wisch & Dyer, Ltd., of Chicago (Dinah B. Dyer, of counsel), for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan (Michael L. Roach, of counsel), for appellee.
   Mr. JUSTICE HOFFMAN

delivered the opinion of the court:

This is an action based upon an allegation of damages to plaintiff’s underground cables caused by defendant, a sewer contractor.

The complaint was filed in three counts, alleging; three separate'instances of damage. Defendant filed its appearance, denying the allegations of each count.

The cause was originally set for trial on August 11, 1972, but continued,' upon request of the defendant’s attorney, to 9:30 A.M., August 29, 1972. On August 29, at 9:30 A.M., the judgment order, later entered, shows that the cause was continued to 1:30 P.M. on said date, due to the failure of the defendant to appear in person or by counsel. At 1:30 P.M., the defendant still not appearing in person or by counsel, the court allowed plaintiff to prove up each count and entered judgment for plaintiff on each count in the sum established by the proofs.

On September 28, 1972, defendant filed a motion to vacate the judgments. The motion contained a verifiéd statement of defendant’s attorney “that defendant’s counsel in fact left his office enroute to this Court for the purpose of defending this cause but was detained due to car- trouble and missed the setting.” Each side was given leave to file affidavits.

The defendant filed affidavits by its job superintendent claiming a defense to Counts II and III based upon the plaintiff’s incorrect location of the cable subsequently damaged. " ...

The plaintiff filed the following:

(1) Affidavits by three of plaintiff’s employees. describing. the preciseness of the cable locations and alleging that the cables were struck due to defendant’s lack of care, etc.

(2) An affidavit by the plaintiff’s trial attorney stating that defendant’s attorney called him late on August 28 stating hé did not wish to try the case the next day, that \yhen plaintiffs attorney arrived for trial on August 29, he was advised by the bailiff that defendant’s attorney had called and said he would be one hour late, and that at 11:50 A.M¡ defendant’s attorney called plaintiffs attorney and stated he would not appear for trial at the re-set hour of 1:30 P.M.

On January 19, 1973, the court denied defendant’s motion to' vacate in a signed order which specifically found that defendant’s counsel “wil-fully and maliciously failed to appear for trial on August 29, 1972." The order indicated that it was based upon the court’s consideration of the various affidavits above referred to. From this order this appeal followed.

The argument of the defendant is based upon the general rule that courts are liberal in setting aside default judgments if justice will be furthered thereby. This broad general statement has been enunciated frequently by our courts. See Mason v. McNamara, 57 Ill.274; Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill.App.2d 102; Schwartz v. Moats, 3 Ill.App.3d 596.

The application of this rule, however, rests upon the sound discretion of the trial judge. (Mason v. McNamara, supra; Widicus v. Southwestern Electric Cooperative, Inc., supra; Coleman v. Toohey, 48 Ill.App.2d 75.) And, as noted in Coleman, the courts are becoming less liberal in setting aside defaults which are entered at the trial stage. Moreover, in the case upon which appellants rely, Widicus, the reviewing court stated that a defendant, who fails to act with reasonable excuse does not have a right to insist that he be allowed to defend, and the court clearly indicated that where the record shows that the defendant treats the court’s command and plaintiffs claims with indifference, a default order might promote justice.

So we turn to the question of the instant judge’s discretionary act.

It is quite obvious that the trial judge here was confronted with an attorney who repeatedly refused to appear for trial and who sought out delay. Apart from the question of whether, in fact, the car of the de-. fendant’s attorney had trouble, it is noted that the sworn statement of plaintiffs attorney that defendant’s attorney called at 11:50 A.M. and stated he would not appear for trial at 1:30 P.M. has gone unanswered. This can well constitute a deliberate and contumacious disregard and disobedience to a court’s necessary authority and it is sufficient, standing by itself, to justify the discretion here exercised.

Defendant, citing Adams v. Grace, 128 Ill.App.2d 69, argues that these acts of defendant’s counsel, although imputable to his client, shouldn’t be visited upon the client here, for such casts a drastic and vicarious punishment on an unsuspecting litigant. This argument is completely supposititious. There is no basis in the record to justify any conclusion that the defendant was an unsuspecting client. There is nothing in the record to indicate the client was misadvised as to the trial date. On the day scheduled for trial, none of defendant’s witnesses appeared for trial. Clearly defendant’s counsel never contemplated that he or his clients would respond to the call.

Courts cannot operate in the manner solicited here. There is no showing anywhere that defendant’s attorney ever personally appeared before the court in this matter. A different attorney even presented the motion to vacate. What activity was indulged in by defendant’s counsel was conducted by telephone. When the trial stage is reached, courts cannot-permit such procedures. In this case the trial judge justifiably decided that the defendant treated the court’s command and plaintiff’s claim with indifference and the defendant must bear the burden. To shift it to the plaintiff would have been unfair.

The order and judgments appealed from are affirmed.

G. MORAN and CARTER, JJ., concur.


author: Mr. PRESIDING JUSTICE T. MORAN.

text:
    The County of Winnebago, Plaintiff-Appellee, v. Doyle Launius et al., Defendants-Appellants.
    (No. 72-364;
    Second District
    October 22, 1974.
    Cook & Hellyer, of Loves Park, for appellants.
    Philip G. Reinhard, State’s Attorney, of Rockford (Alfred W. Cowan, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE RECHENMACHER

text:
    The Department of Public Works and Buildings, Petitioner-Appellee, v. The Exchange National Bank of Chicago et al., Respondents-Appellants.
    (No. 73-12;
    Second District
    October 23, 1974.

      Rehearing denied November 19, 1974.

    Edwárd T. Graham, of Glen Ellyn, for appellant.

      William J. Scott, Attorney General, of Chicago (John S. Teschner and William P. Ryan, Assistant Attorneys General, of counsel), for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This is a condemnation case arising under the “quick take” section of the Eminent Domain Act (Ill. Rev. Stat. 1969, ch. 47, pars. 2.1 — 2.10) and involves a question as to interest on the award of just compensation. The respondents appeal from the decision of the Circuit Court of Du Page County allowing interest from August 1, 1971, and argue that interest should be allowed from the date on which the State made the required deposit under the “quick take” procedure which was January 9, 1970. ■ ■

The appellee (who was the petitioner in the Condemnation case) is the Department of Public Works. The property is located just west and north of the intersection of Route 53 and Route 20 (Lake Street). It comprised about 23,000 square feet including the buildings and was used as a restaurant and dwelling at tire time of the filing of the condemnation petition. The petition to condemn under “quick take” procedure was filed on October 10, 1969, but at that time only about 4,000 square feet of vacant land was condemned, being an “L” shaped strip along the southern and western edges of respondents’ property. There was only one access to the property from the highway (Route 20), and the southern strip of the “L” shaped piece condemned included this access. There was no other direct access. ......

.. On January 9, 1970 the State deposited the required 125% of the preliminary appraisal of the land condemned ($27,500) and thereupon began operations along the southern strip of the “L” (called Parcel 0023). However, the State did not, at that time, cut off the access from appellants’ land to Route 20, although it legally could have done so. Instead the State allowed the appellants to have access over this southern strip to Lake Street (Route 20) during its operations until August 1, 1971, on which date the State entered into actual possession of all direct access rights to the remainder df the property and thereafter denied direct access to and from the properly.

The trial court found, as a matter of fact, that the appellants occupied and used the remainder of the land until August 1, 1971, and had direct access from and to Route 20 until that date.

The appellants had previously filed a cross petition praying that the State be required to take all the appellants’ property and pay the just compensation therefor. After direct access to the remainder of the property was cut off and it became evident that the remainder was landlocked, the State amended its petition to condemn to include the taking of the entire property of the defendants. After a trial to determine just compensation the jury found the just compensation for the taking of the entire property to be $92,000. In calculating the interest to be paid under the “quick take” procedure the court awarded interest on the amount of the award (less the deposit already withdrawn by the defendants) from August 1, 1971, until September 20, 1972 (the date of approval of the final award by the State).

The respondents in this appeal contend the judge erred in. granting interest from August 1, 1971, only, inasmuch as the date of the “quick take” deposit was January 9, 1970. The respondents maintain that as of that date the “quick take” condemnation was affirmed and made certain : and the State could have then taken possession'of the property con-, demned, including the access. Since the State could have occupied the strip across the access at any time after January 9, .1970, it is the respondents’ contention that under section 2.6 of the Eminent Domain Act interest on the award of just compensation should be paid from January 9, 1970.

Section 2.6 of the Eminent Domain Act (Ill. Rev. Stat. 1969, ch. 47, . par. 2.6) reads as follows:

“The petitioner shall pay, in addition to the just compensation finally adjudged in the proceeding, interest at the rate of six per cent (6%) per annum upon:
(a) Any excess of the just compensation so finally adjudged, over the amount deposited by the petitioner in accordance with the provisions of Section 2.3(a) of this Act, from the date on which .the parties interested in the property surrendered possession of the property in accordance with the order of taking, to the date . bf payment of such excess by the petitioner.”

The State points out that since the date on which the owners of the property surrendered possession in accordance with the order of taking was, according to the court’s finding, August 1, 1971, the language of the statute was followed in allowing interest from that date. The appellants however. maintain that loss of market value in the remainder occurred on January 9, 1970, making interest payable from that date. The. property was damaged, according to the appellants’ theory, as soon as its, potential market value for sale or lease was diminished or destroyed. They insist interest must be paid from the date that occurred, which in this case was .January .9, 1970,-the date on which the State confirmed its “quick take” condemnation by depositing the required deposit and thereby became entitléd to possession of the property.

The appellants contend that to interpret the Eminent Domain Act as allowing interest only from the actual date of surrender of possession of the property is to place the Act in opposition to the Illinois Constitution. The Constitution, article I, section 15, states, “Private property shall not be taken or damaged for public use without just compensation as provided by law.” They maintain that since the property was damaged when its potential value was diminished or destroyed by confirmation of the “quick take” condemnation on January 9, 1970, vesting the right to title and possession to the State, it would contravene the Illinois Constitution if interest was not paid from that date. The respondents cite People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, in support of the proposition that compensation is payable under Illinois law for loss of market value and the date of impairment of market value should therefore be the date on which the interest starts to run. However, we do not perceive any parallel between that case and the case before us. The cited case was concerned with the enforcement of a substantive right for damages under the former state constitution by writ of mandamus and the case merely confirms the substantive right to recover for actual damage sustained. It was not concerned with the date from which interest was payable on an award.

The respondents further contend that in any event the allowance of interest only from August 1, 1971, is error because the words “from the date on which the parties interested in the property surrendered possession of the property in accordance with the order of taking,” in paragraph (a) of section 2.6 of the Eminent Domain Act, do not mean surrender of actual possession but surrender of the right to possession. Inasmuch as the State acquired the right to occupy and the right to possession of the property, no later than January 9, 1970, the appellants contend the Act itself requires payment of interest from that date.

In our view this is not a correct interpretation of the words of the statute. As the appellants point out, many times the condemning body does not enter into immediate possession of the condemned property. We believe recognition of this fact — which indeed was the case here — was the underlying reason for the phraseology of paragraph (a) of section 2.6 of the Act, that interest shall be payable “from the date on which the parties interested in the property surrendered possession of the property * * *.” (Emphasis ours.) The framers of the legislation could just as easily have stated the date for commencement of interest as being from the date on which the condemning body acquired the right to possession. That they did not do so we believe is a deliberate recognition of the fact that many times the owner is allowed to possess and operate the premises for a period of time after the filing of the condemnation petition. Where the owner elects to do so he does not “surrender possession” at that time but for his or its own purposes continues in possession, thereby deriving whatever advantages accrue to such possession.

We interpret the words of the statute literally, therefore, as meaning actual surrender, and where the owner occupies and uses the property after the State acquires a right to possession, then subsequently surrenders it, the owner should not be allowed to complain that interest was not computed from the earlier date. It is true that in this case the defendants, after the condemnation suit was filed, petitioned the court to order the taking of the whole property. The State, of course, did not need the whole property and apparently deferred taking more than it needed pending further developments, such as an alternative access being developed for the remainder from Route 53 or the sale of the remainder to an adjoining owner. There is some suggestion in the record that the adjoining property, which had access to Route 53, was owned by the parties or some of the parties interested in the condemned property. At any rate it was not clear that the property was irreparably damaged until the direct access to Route 20 was actually cut off. No figures are cited by the defendant to indicate any loss of revenue from the property during the interval between January 9, 1970, and August 1, 1971, because of the State’s operations, nor is there any allegation that the defendants had had any offer for the sale or lease of the property previous to the condemnation and that the changed condition of the property impaired any such possibility. So far as the record available to us indicates, therefore, the possession and operation of the premises while direct access to Route 20 was available meant that the damage done by the condemnation was theoretical and potential but not actual in terms of dollars and cents during that interval.

While we recognize the validity of respondents’ position that compensation is due and payable under eminent domain law for any damage done to the remainder by the taking, the respondents have not shown actual damage, since it operated the same business and otherwise used the property as before up to August 1, 1971. At least there is nothing in the record indicating otherwise. The fact that respondents could not have sold or leased the premises for the same figure as before the taking does not in itself create “damage” justifying an award of interest from the date of the taking, but in any event no such fact was established in the record before us. It is of course obvious that when all direct access was cut off, producing a landlocked situation for the property, a drastic change in its condition was effected and at that time the respondents could establish real damage to the remainder of its property. It was in recognition of this fundamentally changed condition of the property that the State amended its petition to condemn and took the whole property.

We see no conflict between the Illinois Constitution and the eminent domain statute. The Constitution establishes the right to compensation for damage done by a taking; the Eminent Domain Act simply .limits the interest to be paid on the award for such damage to begin at such time as the interested parties surrender possession. The respondents in this case derived whatever advantage was possible by possession of the premises until August 1, 1971, and are not entitled to interest in addition, prior to that date.

Any conflict between the Eminent Domain Act and the Constitution of the State of Illinois appears to be derived from the respondents’ own construction of the statute, a construction which we believe is not warranted by the language of the Act itself.

Judgment affirmed,

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The Road King Petroleum Products, Inc., Plaintiff-Appellee, v. The Village of Wood Dale, Defendant-Appellant.
    (No. 72-46;
    Second District
    October 23, 1974.
    Samuel A. LaSusa and Dom J. Rizzi, both of Chicago, for appellant.
    Mirabella, Factor, Mirabella & Kincaid, of Wheaton, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This action was brought by the plaintiff, Road King Petroleum Products, Inc. (Road King), to quiet title to certain property located in the village of Wood Dale, Du Page County. The defendant, the Village of Wood Dale, counter-claimed. The trial court, sitting without a jury, found the issues in favor of Road King and entered judgment for the plaintiff and counter-defendant. The village appeals. The issue on appeal is whether or not there was a valid statutory , dedication of a portion of the property to the village of Wood Dale.

. The. property involved is a part of a . 12-acre tract which is bounded by the center line of Irving Park Road on the south; the Chicago, Milwaukee, St. Paul and Pacific Railroad on the north; Addison Road on the west, and Harvey Avenue on the east. (See insert on next page).

On August 1, 1963, Road King obtained fee title ownership of the property. In 1964 the property was annexed to the village of Wood Dale by annexation agreement between the Road King and the village. In December, 1966, Road King, through its president, Pierce Maher, commenced negotiations with the Union Oil Company for the sale and purchase of a subdivided part of the property, 150 x 200 feet, which comprised the southwest comer of the parcel. On December 10, 1966, pursuant to the negotiations, Road King entered into a written agreement giving Union Oil the option to purchase.

On March 1, 1967, the planning board of the village of Wood Dale gave tentative approval to plans for a service station to be located on this southwest comer. The planning board recommended to the village that the owner of the property, Road King, present a subdivision plat of the property in accordance with the Plat Act of the State of Illinois (Ill. Rev. Stat. 1967, ch. 109, par. 1 et seq.).

Thereupon, Union Oil Company contacted and retained one Carl Harrington, a registered Illinois land surveyor, to prepare a plat of the 12-acre parcel. Union Oil provided the legal description from which Harrington prepared the document. Harrington found that the Road King title ran to the center line of Irving Park Road for the entire length of the property on the southern border. After Harrington prepared the plat of survey he certified it on March 18, 1967. (See Ill. Rev. Stat. 1967, ch. 109, par. 2.)

On March 31, 1967, Pierce Maher, president of Road King, acknowledged and signed the assessment plat. Maher returned the plat to a representative of the Union Oil Company who had originally asked for his signature. At the time Maher signed the plat there was a line of the plat which ran parallel to the center line of Irving Park Road for the entire width of the property. The line was 50 feet to the north of the center line of Irving Park Road. In the space between the two lines, which would be the northern half of Irving Park Road, no words of dedication appeared.

On April 3, 1967 at a village of Wood Dale board meeting, the plat, now known as Maher’s Assessment Plat, was submitted for approval. It was moved and seconded by members of the council to approve the plat subject to it being amended to show a dedication of the 50-foot strip north of the center line of Irving Park Road. At trial, the clerk of the village could not recall to whom she returned the plat in order to have the words “Hereby Dedicated” placed on the plat. The surveyor,

Harrington, added the words “Hereby Dedicated” in the 50-foot space representing the northern half of Irving Park Road. At trial Harrington testified that he did not remember who told him to add the words “Hereby Dedicated” on the plat but he testified that the request to add the words did not come from either Pierce Maher or Road King. The plat was subsequently returned to the village,' approved, and recorded. There was no evidence introduced at trial , as to who recorded the plat. Maher was not present at the village meeting.

After the plat was approved and recorded as a public record in accordance with the provisions of the Plat Act (Ill. Rev. Stat. 1967, ch. 109, par. 2), Road King in 1967 conveyed the southwestern corner lot of the subdivided parcel, including a portion of the 50-foot strip to Union Oil pursuant to the option agreement; the deed running to the center line of Irving Park Road.

In August 27, 1970, the village of Wood Dale notified Road King in writing that it had passed an ordinance providing for the construction of sidewalks alongside certain streets in the village of Wood Dale. The notification referred specifically to the recorded Maher Assessment Plat and it provided the sidewalk was to be constructed within the 50 feet shown on the recorded plat as having been dedicated.

Thereupon, Road King claimed that it never made the dedication and brought this suit to quiet title. The village of Wood Dale filed a counterclaim asserting that the dedication was valid and that the 50 feet involved in the dedication was part of the village of Wood Dale’s plans for the widening of living Park Road and the installation of sidewalks alongside the roadway. The trial court found that Maher did not dedicate the 50-foot strip in that portion of the property which he retained.

After a careful review of the record, we find that there was no statutory dedication of the 50-foot strip north of the center line of Irving Park Road. There must be strict and full compliance with the Plat Act in order to have a valid statutory dedication. (Sundstrom v. Village of Oak Park (1940), 374 Ill. 632, 30 N.E.2d 58.) In a statutory dedication, acknowledgment and recording of the plat constitute a dedication and vests the title to the dedicated property in the governmental body. (Manly v. Gibson (1851), 13 Ill. 308; City of Edwardsville v. Barnsback (1896), 66 Ill.App. 381; Ill. Rev. Stat. 1967, ch. 109, par. 3.) In this case the evidence produced at trial clearly shows that Maher, as president of Road King, acknowledged the plat before the words of dedication were added by the surveyor. It was not re-submitted to Maher for his approval. Hence, the acknowledgment and recording of the plat in this case did not constitute a valid statutory dedication of the 50-foot strip.

The village of Wood Dale contends, however, that the words were added by the surveyor who was acting as an agent for Maher. Therefore, the village of Wood Dale argues, the plat was approved by the owner through his agent. We disagree. The surveyor was not acting as the agent for Maher in adding these words and testified that he had not added the words of dedication to the plat at the request of the owner.

However, even if we assume the surveyor were the agent of Maher and Road King, we still find that there was no statutory dedication. Under the Act, a duly authorized attorney is the only agent of the owner who can validly acknowledge the plat in place of the owner. (Ill. Rev. Stat. 1967, ch. 109, par. 2.) Accordingly, we conclude that if an agent other than the attorney cannot validly acknowledge a plat for the owner, an agent surveyor cannot validly add additional words of dedication to the plat without the owner or his attorney acknowledging these words of dedication. See Russell v. City of Lincoln (1902), 200 Ill. 511, 65 N.E. 1088; Baugan v. Mann (1871), 59 Ill. 492, 494.

Citing Woodward v. Schultz (1959), 15 Ill.2d 476, 155 N.E.2d 568, the defendant contends, however, that because a plaintiff sold a portion of his property with reference to the assessment plat, the plaintiff is now estopped from claiming that there was no dedication. We find from the evidence that Maher was not aware of the words of dedication on the plat. This fact is evident not only from Maher’s testimony but from the deed Maher gave to Union Oil Company. The legal description of the property contained in the deed gave the center line of Irving Park Road as the property’s southern boundary. Therefore, in actuality, it is evident that Maher did not sell the property with reference to the assessment plat. Thus, Maher is not estopped from claiming that there was no dedication.

For the foregoing reasons the trial court properly found that there was no statutory dedication of the 50-foot strip of the parcel which Maher retaied. We, therefore, affirm the judgment of the trial court.

Affirmed.

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


author: Mr. JUSTICE ALLOY

text:
    Dwight C. Robb, Plaintiff-Appellee, v. Bror L. Lindquist et al., Defendant-Appellant.
    (No. 74 68;
    Third District
    October 24, 1974.

      Franklin S. Wallace, of Rock Island, for appellant.
    Christ T. Panousis, of Rock Island, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a decree of foreclosure of $5,000 mechanics liens filed by plaintiff Dwight C. Robb against a tract of land which consisted of two parcels which were being acquired by defendant Bror Lindquist as a contract purchaser. The title owner was also made a party to the action to foreclose the mechanic’s liens filed by Robb.

The record in this cause discloses that the plaintiff filed two mechanic’s liens in the recorder’s office of Rock Island County as against two separate parcels of property of defendant Bror Lindquist upon which work was performed by plaintiff Robb. The complamt which was filed by Robb contained two counts specifically describing the two separate parcels of land and the work performed on those parcels. It appears from the record that Robb orally contrácted to improve a parcel of land owned by Lind-quist (who was married to Robb’s mother). On this tract Robb was to perform a variety of functions. Thereafter in the spring of 1969, Lindquist purchased what apparently was an adjoining parcel, and on that parcel Robb agreed to clear the land with extensive bulldozing and to disc the ground and to replant the land for defendant. The work was performed using Robb’s equipment.

It appears that the understanding between Robb and Lindquist was that the improvements were to be paid for by Lindquist as a credit toward the purchase of the property by Robb. Defendant Lindquist did not compensate plaintiff in any manner for the work performed on the two parcels of land but, in 1970, plaintiff found out that defendant was selling the parcels of real estate. He accordingly filed his liens and thereafter instituted the foreclosure action in this cause.

One count in the complaint described the original tract of real estate owned by Lindquist and recited that in the year 1966, particularly in November of 1966, plaintiff and defendant entered into the agreement referred to for improvement of real estate therein described. It recited that plaintiff performed and completed the work in 1969 and that the value of his services was $1,000. The other count of the complaint recites that defendant entered into a contract of the type referred to and did substantial work in improvement of the other parcel of real estate and alleged that there was due for such services the sum of $4,000.

Plaintiff contended, and supported such contention by evidence heard in the cause, that work on the original parcel owned by defendant commenced in November 1966 and terminated not later than October 1969. The work on the second parcel acquired by Lindquist later commenced in May of 1969 and terminated in 1970. Plaintiff asserts that there were two distinct tracts and there were two distinct understandings as to improvement of each of the tracts with the same ultimate reward referred to (credit on the purchase of the land by Robb). Plaintiff asserts that each of these tract improvements was commenced and completed within a 3-year period. Defendant contends that the work was one continuous act which took more than 3 years and was therefore not lienable. The trial judge, sitting without a jury, found for plaintiff and placed a single lien for $5,000 on both tracts as a whole. The decree contained a provision granting a 3-day period during which defendant could satisfy the decree. The court ordered that, if the decree was not satisfied within such period, a foreclosure sale of the land was ordered subject to the mechanic’s lien and a decree for the deficiency, if any, as against Lind-quist, in the event the proceeds of the sale were insufficient to cover the amount due appellee.

. Defendant on appeal in this court claims principally that the decree violates section 6 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1969, ch. 82, § 6), which requires “that the work is done or material furnished within three years from the commencement of said work or the commencement of furnishing said material” in order to qualify for the mechanic’s lien. The language of the statute, which mandates the 3-year completion period, and the cases, indicates that the 3-year period commences with the beginning of work for which the mechanic’s lien is asserted and not with the date upon which the contract for such work was entered into. (Harwood v. Brownell, 32 Ill.App. 347, 349 (1890).) The Harwood case construed a similar statute now repealed. In discussing and referring to this cause on appeal, each of the parties refers to the separate nature of the parcels. The nature of the services performed on each of the parcels was different in character. Each of the parcels required different skills and equipment. Plaintiff also kept separate time records for each parcel. On the basis of the eidence thus presented, the trial court found that in each case the work was begun and completed within the 3-year period set forth in section 6 of the Mechanics’ Liens Act referred to.

From the evidence which was presented, the trier of fact could prop; erly determine that the work done on each parcel was distinct from that done on the other and that the 3-year limitation period would, be computed separately as to each parcel. The court could also have con; eluded,-on the basis of such evidence, that the work as to. each of the •tracts was complete within such 3-year period. The court then concluded that since the work was completed on each lot within the 3-year period, within the scope of section- 6 of the Mechanics’ Liens Act, the decree of foreclosure was appropriate.

As we have frequently stated, a comt of review may not disturb the trial court’s judgment unless it is clearly and palpably against the manifest weight of the evidence. (People ex rel. Jones v. Schmitt, 101 Ill.App.2d 183, 242 N.E.2d 275.) On the basis of the record before us we could not say that the conclusion of the trial court in this cause is clearly or palpably against the manifest weight of the evidence.

Defendant also contends that the services performed on one of the tracts were not subject to a mechanic’s lien. It is the contention of defendant that the work consisted of farming and that farming was not included in the statute among the type of activities entitled to a lien. While it is asserted by the plaintiff that this issue was not raised in the trial court, and, therefore, could not be raised on appeal, we believe it is sufficient to observe in connection with this issue that it is indeed a factual one as to which plaintiff asserts that the work challenged is not farm work but rather improvements to the land to which the lien relates. (See Beaudry v. Bell, 250 Ill.App. 468; Liddell v. Smith, 65 Ill.App.2d 295, 213 N.E.2d 599 (1965).) On the basis of the record, which contains evidence in support of plaintifFs position, the finding of the trial court that such work is lienable would not be set aside on review.

Defendant also asserts that even if the mechanic’s lien is proper, plaintiff is entitled to a personal judgment only as to the deficiency after the. sale and is not entitled to a personal judgment for the entire amount of $5,000. Here the court found that plaintiff has established his right to a mechanic’s lien and that a personal judgment could be entered in conjunction therewith with a proviso that, to the extent that it is not satisfied by the defendant or by the ..result of the foreclosure sale through a deficiency, the judgment could then be enforced personally as to the deficiency as against defendant. Such conclusion is in accordance with sections 14 and 19 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1969, ch. 82, §§ 14, 19).

It is also asserted by defendant that the imposition of a single mechanic’s lien on the two tracts, being treated as a whole, is improper for the reason that it does not ratably allocate the value of the services to the tract upon which the particular work was done. Defendant requests that this court remand this case to the trial court for the purpose of placing separate liens "as to each tract so that the value' of the services performed on each, tract will be properly shown. Plaintiff has no objection to this procedure and therefore, in order to protect the parties and any third parties who might have an interest in either of the tracts, this cause is remanded to the trial court with instructions to specify in the decree separate liens on each of the tracts so as to reflect the ratable amount of the $5,000 value of work done on each respective parcel.

For the reasons stated, we accordingly affirm the decree of the Circuit Court of Rock Island County in part but remand the cause in part for further action not inconsistent with the views expressed in this opinion.

Affirmed in part and reversed and remanded in part.

STOUDER and DIXON, JJ., concur.


text:
    Dwaine Fisher et al., Plaintiffs-Appellants, v. The City of Aledo, Defendant-Appellee.
    (No. 74 85;
    Third District
    October 24, 1974.

      David J. Mason, of Aledo, for appellants.
    Peter Fieweger, of Katz, McAndrews, Durkee & Telleen, of Rock Island, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment entered in the Circuit Court of Mercer County, in which the court found appeHants Dwaine and Bonnie J. Fisher contributorily negligent and dismissed the action of appellants as against the City of Aledo.

The Fishers sought recovery for damages sustained to certain rental property located in Aledo, as a result of the breaking of water pipes which caused water to escape and damage the premises on or about January 1, 1972. AppeHants allege that the damage was occasioned by reason of water in the unheated pipes and that the negligent faüure of the city to terminate the water service to the building, after the city had previously terminated the gas service in the building, was the cause of the damage and entitled appellants to a recovery.

At the close of the case presented by appeHants in the bench trial, appellee moved for a finding under section 64(3) of the CivH Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 64(3)), which provides:

“(3) In all cases tried without a jury, defendant may, at the close of plaintiffs case, move for a finding, judgment or decree in his favor. In ruling on the motion the court shall weigh the evidence. If the ruling on the motion is favorable to the defendant, a judgment or decree dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant he may proceed to adduce evidence in support of his defense, in which event the motion is waived.”

The court found that the appellants were contributorily .negligent but made no express finding as to fault or negligence, as to appellee.

The record indicates that appellants had received gas and water service, for the rental property from the City of Aledo. On November 22, 1971,. appellants requested the City to terminate both, services; The gas service was promptly terminated, and notice of such termination was foiwarded to appellants by means of a final bill with a handwritten , notation “Shutoff and sealed 11-23-71.” Neither a.final bill nor other notification of, termination of the water service was sent to appellants since termination was never accomplished for the reasons- hereinafter noted. Appellant Dwaine Fisher had occasion to visit the premises 4 or 6 times between the time of the request to terminate and the discovery of the damage. He made no attempt to ascertain whether or not the water servicé had been terminated. The city established that its- failure to shut off the water resulted from the fact that the only water valve known to the city was in the basement apartment of the structure. The door to' the- downstairs apartment was locked and vacant so that no entry was'possible. No such - problem existed with respect, to the,gas, since the. valves were located outside the building. The city representatives were unaware of an outdoor water valve which was not visible due tó a growth of foliage on its underground location. ■ ' ', '

On appeal in- this court; appellants deny that they were guilty of negligence. The parties agree that under the law" of this State plaintiffs cannot recover if appellants were guilty of négligence contributing to the damage or injury. It is also clear that if - the finding made,by the trial - court that plaintiffs were guilty of contributory' negligence is supported'. by sufficient evidence, the dismissal by the trial court was proper.- On a bench trial, the trial court sits as a trier of fact arid can weigh the evidence and determine the credibility of the witnesses. His findings under" such circumstances are entitled to great weight on appeal and should not be set aside unless clearly against the manifest weight of the evidence. Drovers National Bank v. Ferrell, 14 Ill.App.3d 389, 302 N.E.2d 417 (1973).

Appellants contend that the judge may not find contributory negligence unless the' evidence viewed in the-light most favorable to plaintiff is so overwhelming that no other finding'could stand. This is not the law and is a misinterpretation of the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504) which is not applicable to the issue before us. As indicated in Drovers (14 Ill.App.3d at 393):

•* ■ * The trial court when sitting without:- a jury rnust not consider the evidence in a light most favorable to plaintiff; if must weigh the -evidence -including any evidence favorable to defendant. [Citation.] Furthermore, a reviewing court must not reverse a trial court’s ruling on such a motion unless the ruling is manifestly erroneous. [Citation.]” ■

There was sufficient evidence. in 'the cause before us to establish that appellants were contributorily negligent in that they failed to act as prudent individuals would under the same circumstances and that such behavior was a proximate cause of thé damage sustained.

Dwaine Fisher admitted he had visited the premises a number .of times after the order to terminate bút did not ascertain whether or not the water was turned off. He*knew the gas service had been terminated and, although he did not receive any' notification as to the water service he did nothing to determine whether the water had been turned off. He admitted that the door was locked so that access to the downstairs apartment was not possible to the city representatives.

We do not believe we would be justified in finding that the determination of the trial court was against the manifest weight of the evideñfce in its finding that appellants were guilty of contributory negligence,.

For the reasons stated, therefore, the action of the trial court in entering the order of dismissal is affirmed. -

Order affirmed.

STOUDER and DIXON, JJ., concur.


author: Mr. PRESIDING JUSTICE TRAPP Mr. JUSTICE CRAVEN

text:
    Willard Scrimager, Plaintiff-Appellant, Cross-Appellee, v. Cabot Corporation, Defendant-Appellee, Cross-Appellant.
    (No. 12080;
    Fourth District
    October 24, 1974.

      CRAVEN, J., dissenting.
    Hatch, Corazza, Baker & Jensen and Hagin Harper, both of Champaign (Harold A. Baker, of counsel), for appellant.
    Jack E. Horsley and Richard F. Record, Jr., both of Craig & Craig, of Mattoon, for appellee.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff sued to recover for personal injuries alleging violation of the Structural Work Act (Ill. Rev. Stat. 1967, ch. 48, pars. 60-69). Upon a bench trial the court awarded damages in the sum of $27,415.03. Plaintiff appeals urging that such award is inadequate as a matter of law.

Defendant cross-appeals urging that the evidence does not support the finding that the defendant was “in charge of” the work as provided in such Act, and that the trial court committed prejudicial error by accepting into evidence rules prepared by the Industrial Commission of the State of Illinois upon the authority of the Health and Safety Act, Ill. Rev. Stat. 1967, ch. 48, par. 137.3.

Plaintiff was a member of a painters union, employed by the Hartman-Walsh Paint Company to paint the roof of the defendants warehouse. He fell from the roof suffering injuries. At such time the building had no permanent railings or gutters on the roof and no safety devices of any type were being used.

Defendant had a written contract with Hartman. The trial court particularly noted the many provisions of the contract with regard to the “right to control” the work, which included and provided for the right of defendant to cause the discharge of any incompetent employee; to require compliance by Hartman with instructions for safety given by the defendant’s engineer; that the right to terminate the work when weather did not permit satisfactory quality; the right of defendant to determine whether or not there should be night work and the right of defendant to suspend work on the job. In a somewhat contradictory vein, the contract provided:

“It is stipulated and agreed that [Hartman-Walsh] is an independent contractor and has full power and authority to select the means, methods and manner of performing the work herein contracted for, and is responsible to [defendant] only for the results herein contracted for, and that [defendant] shall not have the' power or authority to direct, supervise or control [Hartman-Walsh] in the means, manner or method of the performance "of the work; but that said [Hartman-Walsh] shall be responsible, to [defendant] for the faithful completion of the work herein contracted.”

■ It appears from the testimony that defendant did not, in fact; exercise any authority or control under the contract' and did not have any dealings with the painters performing the job. Essentially, it seems that no authority or control was actually exercised in behalf of the defendant.

Liability under section 9 of the Scaffold Act (Ill. Rev. Stat. 1973, ch. 48, par. 69) follows from “having charge of the * * * painting of any building 6 * *,” and not from mere ownership of the building upon which the work is being-performed. ■ (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785.)- Although the term “having charge of” has been said to be one of common usage and understanding, not requiring further definition (Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247), a few specific principles concerning that term have developed. The retention of the right to control the work is sufficient to'establish a duty under the Act. (Larson, supra; Buehler v. Toynan Construction Co., 52 Ill.2d 214, 287 N.E.2d 691.) One upon whom the statute imposes duty cannot be freed from that duty by failure to exercise the control he has retained. (Larson, supra; (Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724, cert. denied, 393 U.S. 935.) One possessing the right to stop the work if it is being done in a dangerous manner is a person “having charge” within the meaning of the Act. (Miller v. DeWitt-Amdal & Associates, 37 Ill.2d 273, 226 N.E.2d 630.) Whether a particular person has charge of the work is a question to be resolved by the trier of fact. (Gannon, supra.) The jury’s determination of “having charge” will not be disturbed upon review if it is not contrary to the manifest weight of the evidence. (Crabb v. Robert R. Anderson Co., 87 Ill.App.2d 291, 232 N.E.2d 44.) The same standard of review applies to a bench trial, and the trial court’s factual determination., will hot be disturbed unless contrary-to the manifest weight of the evidence. (Hall v. Burnett, 5 Ill.App.3d 33, 282 N.E.2d 509.) Here, Hartman-Walsh had by contract' agreed to require its painters to obey defendant’s engineer’s safety regulations, and defendant retained the right to terminate the contract if Hartman were to willfully violate its terms, and Krstop.the work if it appeared to be in defendant’s best interests. The trial court could reasonably find that defendant had the right to stop the work, iff it were being done in an unsafe manner. (Miller v. DeWitt, supra.) In Weber v. Northern Illinois Gas Company, 10 Ill.App.3d 625, 295 N.E.2d 41, it was concluded that the owner cannot by contract assume control of the work, but by the same contract exclude responsibility for safety.

Defendant asserts that it was error to admit into evidence certain rules of the Industrial Commission of the State of IUinois prepared under the authority of the Health and Safety Act. By its terms, such rules are applicable only between an employer and his employees. (Jones v. S. S. & E. Corp., 112 Ill.App.2d 79, 250 N.E.2d 829; Tenenbaum v. City of Chicago, 11 Ill.App.3d 987, 297 N.E.2d 716.) Among such rules, one provided for a standard scaffold or catch platform for work upon all roofs of a quarter pitch or more.

In Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724, it was held that the application of the Structural Work Act cannot be avoided by a failure to provide a scaffold and that such failure to so provide a scaffold-like appliance may be á violation of the Act.

In Parizon v. Granite City Steel Company, 71 Ill.App.2d 53, 218 N.E.2d 27, it was noted that the Structural Work Act does not state when or under" what circumstances there is a duty to provide a scaffold. See also the dissenting opinion in Barenfanger.

We conclude that tire authorities establish the admissibility into evidence of such rules. In Larson v. Commonwealth Edison Co., 48 Ill.App.2d 349, 353-54, 199 N.E.2d 265, an action under the Structural Work Act, the court noted that the use of the type of scaffold “was regulated by rulés promulgated by the Industrial Commission of the State of Illinois pursuant to the mandate of the Health and Safety Act." The supreme court (33 Ill.2d 316, 319, 211 N.E.2d 247) said:

“[I]t is undisputed that the scaffold did not comply with rules promulgated by the Industrial Commission to implement the statute.” (Emphasis supplied.)

In Clements v. Schless Construction Co., 91 Ill.App.2d 19, 234 N.E.2d 578, the complaint charged a violation of the Structural Work Act in that the acts of the defendant were in violation of the safety rules issued pursuant to the Health and Safety Act. It was held that:

“The Structural Work Act, as well as the Health and Safety Rules of the Industrial Commission, control such matters.” (91 Ill.App.2d 19, 26.)

After a new trial, plaintiff appealed (8 Ill.App.3d 291, 290 N.E.2d 21) from a vérdict for defendant contending that it was error to refuse to instruct that a violation of such rules was a violation of the Act. In affirming the trial court’s refusal to so instruct, the opinion said:

“We agree with the holding in Avery that these rules, as evidence, serve a useful function in establishing the proper standard of care to be exercised by the Defendant. Following the principles set forth in Darling v. Charleston Community Hospital, 33 Ill.2d 326, 211 N.E.2d 253, we hold that a proper standard of conduct may be established by these rules, but they do not conclusively establish and determine the standard of care, and the Jury should not be instructed that they do. The Jury should be instructed as to the limited purpose for which these rules are admitted.” 8 Ill.App.3d 291, 297.

In Avery v. Moews Seed Com Co., 131 Ill.App.2d 842, 268 N.E.2d 56.1, the rules were held admissible into evidence in an action for personal injuries for the purpose of establishing a standard of care, although the plaintiff was not an employee of the defendant In Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co., 49 Ill.2d 118, 273 N.E.2d 809, standards of the Department of Public Works and Buildings for grade-crossing protection were held admissible in an action for wrongful death, although such standards were not adopted by the Illinois Commerce Commission and were not binding upon the railroad. The court quoted its language from Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253, in the language:

“ ‘In the present case the regulations, standards, and by-laws which the plaintiff introduced into evidence, performed much the same function as did evidence of custom. This evidence aided the jury in deciding what was feasible and what the defendant knew or should have known. It did not conclusively determine the standard of care and the jury was not instructed that it did.’” (49 Ill.2d 118, 125.)

The evidence here in question performed the same function and was properly admitted.

Defendant urges that the evidence was inadmissible by reason of the decision of this court in Ploense v. Illinois Power Company, 2 Ill.App.3d 874, 275 N.E.2d 920, and that the trial court was bound to follow such authority under the rule of Hughes v. Medendorp, 294 Ill.App. 424, as construed in UMW Union Hospital v. UMW District No. 50, 52 Ill.2d 496, 288 N.E.2d 455. As with the cases cited, Ploense simply held that it was error to instruct as to a duty arising under the rules of the Health and Safety Act. Such ruling is clearly distinguishable from evidence which is limited to showing a standard of care.

Plaintiff urges that the award of damages is inadequate as a matter of law. The sum of $2415.03 in the judgment covered medical expenses. Plaintiff was 38 years of age with a life expectancy of 34.5 years. He lost 6 months’ work and his injuries are, to some extent, permanent. His testimony is that he is no longer able to work as a painter. He had, however, continued to work as a track driver and equipment operator. There is some testimony that plaintiff was rated as a combination steel and steeplejack painter. The wage scale of the latter employment at the time of trial was $8.38 per hour. It is argued that plaintiff’s earnings should be determined upon the basis of working as a steeplejack. The record, however, does not show any actual employment as a steeplejack painter. It does show plaintiff apparently left a job erecting radio antennae to be a commercial steel painter. In argument, it seems to be assumed that plaintiff could work as a steeplejack until some 65 years of age, but there is no evidence to such effect.

Plaintiff’s work, as a painter, is not shown to be any regular employment with a particular contractor but he was assigned from a union hall. At the time of the injury he had been on this job some 4 days. There is no evidence of an average annual income based upon employment as a painter or otherwise, and there is no evidence as to how many weeks during a year he was employed, or might expect to be employed in the admittedly seasonal work. As the trial court noted, there is no evidentiary basis for determining annual earnings.

In order that this court can determine that a verdict is against the manifest weight of the evidence, the contents of the record must be such that an opposite conclusion is clearly evident. (McInerney v. Hasbrook Construction Co., 16 Ill.App.3d 464, 306 N.E.2d 619.) By such rule, we cannot say that the verdict is inadequate as a matter of law.

The judgment is affirmed.

Affirmed.

SIMKINS, J., concurs.

Mr. JUSTICE CRAVEN

dissenting:

The trial court awarded $25,000 for plaintiff’s pain, suffering, and loss of past and future wages. Upon the evidence presented, I believe this amount is inadequate as a matter of law.

Plaintiff suffered a severe fracture of the right clavicle, a compression fracture of the seventh thoracic vertebra, possible herniated intervertebral disc, a large fracture of the right temporal portion of the skull, multiple rib fractures, and numerous cuts and contusions on his face, arms, and legs as a result of his fall. Limited movement of plaintiff’s right arm as a result of thoracic outlet syndrome, inability to lift heavy objects due to back pain, and morning headaches are permanent manifestations of plaintiff’s injuries.

As a consequence of his injuries, it was uncontradicted that plaintiff is unable to successfully continue his previous occupation of painter. Before the accident, plaintiff held a journeyman’s card as a combination steel and steeplejack painter. The record discloses that plaintiff was engaged in that profession when injured. This occupation had a totál package wage rate of $8.83 per hour at the time of plaintiffs trial.

■ The best employment plaintiff has been able to obtain following his injuries was working as a winch operator at $5 per hour for his brother who owns a tower-erection company. The record indicates plaintiffs accident-related physical handicaps make continuation of this employment tenuous.

Although the evidentiary posture of this case as to damages is not ideal, the record does disclose that plaintiff earned only $3521.25'in the year 1971 as a result of 971 hours of employment. Realizing that painting is seasonal work and that no precise figure was given as to plaintiffs work as a painter before his injuries, if plaintiff had been employed as a steel and steeplejack painter for this number of hours in 1971, he would have earned $8573.93 at the then wages. The evidence disclosed plaintiff did not have, steady work in the wintertime as a painter but did work continuously during summers before his injuries. It is upon this inability to, precisely determine what plaintiff’s income was before his accident that the majority sustains the trial court’s verdict. . , .

■ It is apparent that there is a substantial differential between what plaintiff earned before his injuries and what he earned, afterwards. Projected over a 26-year work-life expectancy, it is obvious that the $25,000 awarded plaintiff is inadequate. It does not strain the concept of judicial notice to recognize the fact that the dollar’s value has rapidly decreased and continues to do so. The true value of plaintiff’s 1972 judgment for 1967 injuries, which contained an element for loss of future earnings, is greatly diminished when viewed in light of this inflation. The judgment awarded plaintiff cannot be anything- more' than a guess concerning plaintiffs loss of future earnings rather than a figure based upon reasonable mathematical, certainty in the proof. A judgment in favor of a plaintiff can be reversed when it is obvious that the factfinder failed to take into consideration the proper elements of damage clearly proven and awarded him an inadequate amount. (Wihr v. Bruno’s Appliances Sales & Service, Inc., 29 Ill.App.2d 145, 172 N.E.2d 633.) The judgment should be reversed and the cause remanded for a new trial on the issue ¡of damages only.


author:
Mr. JUSTICE CREBS
      Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    O. J. Klein, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of the City of Pana, Defendant-Appellee.
    (No. 74-33;
    Fifth District
    October 8, 1974.

      G. MORAN, P. J., dissenting.
    J. Dale Berry, of Kleiman, Cornfield and Feldman, of Chicago, for appellant.
    Joseph L. Fribley, of Fribley & Fribley, of Pana, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Christian County affirming plaintiff’s discharge from the police force of the City of Pana by that city’s Board of Fire and Police Commissioners. Plaintiff contends that the evidence presented before the Board was insufficient to warrant his discharge; that the action taken against him was motivated solely by the fact that he had appealed a previous 5-day suspension; that two members of the Board were prejudiced and should have disqualified themselves; and that he was deprived of a fair hearing in that the Board refused to permit the hearing to be open to the public.

The complaint against plaintiff was filed by the chief of police on April 7, 1972, and consisted of 14 separate charges involving incidents occurring over a period of time from January 1969 to March 1972. Two of these charges, involving an alleged interference by plaintiff in a truancy hearing, and an unsolicited recommendation to a probation officer, were stricken for the reason that they formed the basis of the 5-day suspension which plaintiff had already appealed. Evidence was offered on only four of the remaining charges and the rest were dismissed. In its decision the Board found plaintiff guilty of (1) a battery committed upon Don Cohan on May 16, 1971, in violation of the rules and regulations of the Police Department and section 12 — 3 of the Criminal Code (Ill. Rev. Stat., ch. 38, par. 12 — 3), and (2) an assault on Thomas Reber on July 3, 1969, in violation of said rules and regulations and section 12 — 1 of the Code. Two other charges, involving the breaking of a door lock in the police station in March, 1971, and shooting a loaded gun into the air behind the police station in January, 1968, were held trivial in nature and meriting no decision.

The hearing was extensive and took a number of days to complete. On the Reber assault charge Thomas Reber testified that he ran a collection agency and that among his accounts were two bills against plaintiff, one for the Pana Community Hospital and one for a Ford Agency. After several unsuccessful efforts to effect collection by letter and telephone, plaintiff finally came to Reber’s office. He was obviously angry, demanded Reber’s identification, and then threatened him saying, “I’m going to bust your head wide open.” Without giving Reber a chance to say anything he eventually left warning that, “As long as you are in this town you will walk a straight line.” Reber stated that at no time did plaintiff touch him, but because of plaintiff’s anger and size (6’, 230-235 lbs) he was scared and did not report the incident to anyone. A telephone repairman, who happened to be in Reber’s office at the time, corroborated Reber’s testimony in every detail, adding that he had suggested that the matter be reported immediately but that Reber was too scared-and did not want to provoke plaintiff in any way. Plaintiff testified that he did go to Reber’s office, that he did demand his identification, and that he did tell him he was going to get his “block knocked off,” but he only did so to stop him from making any more calls to his house, using profane and obscene language to his wife and daughter. In support of plaintiff’s testimony his wife and daughter testified that a man they identified as Reber had called them on a number of occasions and had used profane and obscene language in an effort to collect said bills. In rebuttal, Reber denied ever using profanity over the telephone, saying that his agency members never so belittled themselves as professional collectors.

On the Cohan battery charge, Don Cohan testified that on May 16, 1971, at about 9:30 P.M., he and his brother, Jim, came to the police station to report an accident. When plaintiff saw him come in he grabbed him, pushed him up against the wall and demanded to know what stories he had been telling about him (apparently concerning an incident that had occurred between the two of them a week or two previously in the alley behind the station). Cohan said that plaintiff, while poking him in the chest with his knuckles, called him obscene names and finally picked him up and threw him against the wall. Cohan called to his brother, but plaintiff continued to abuse him, grabbed him by the throat-, and eventually pushed and threw him down the stairs. When he landed at the bottom plaintiff followed him and kicked him and pushed him into a cell and locked it. Jim Cohan then called the mayor and about 20 minutes later the mayor, Jim and plaint'ff came down to the cell block. Don said the plaintiff then asked him if he wanted to forget it and go home. He agreed, but when he got home his mother insisted that they both go back. She called the mayor again and they all met at the police station. This time plaintiff refused to tell Don’s mother anything, saying he did not have to, and instead told Don that he was under arrest for disorderly conduct. He then wrote out a ticket and refused to release him until the family paid $25 in bond money. The next day Don went to the State’s Attorney’s office to report the incident and sign a complaint. When he heard nothing further from this visit he went back again in the company of two city aldermen, but again there were no results. Jim Cohan testified that when he heard the commotion in the police station he demanded to know what was going on but plaintiff told .him, “If you mouth off you are going to get some of the same.” The mayor testified that when he arrived he did not hear Don call plaintiff any names, but that plaintiff, in telling him about the incident, said; “I kicked him in the ass going down.” Mrs. Cohan wanted the mayor to fire plaintiff on the spot but he told her he had no such authority and advised her to go to the State’s Attorney’s office.

• Plaintiff testified that when the Cohans came into the station he approached Don and told him he had better leave those young girls alone over at the cab company or he would charge him with contributing to the delinquency of minors; that Don told him he would do as he pleased, and then called him some obscene names. Plaintiff stated that he then grabbed Don, informed him he was under arrest, and when he appeared to be trying to get away he hustled him down the stairs, towards the cell block. When he again tried to get away plaintiff said he tripped him with his foot and put him in a cell.

In his briefs on appeal plaintiff does not deny the occurrence of either of the above incidents. In the Reber confrontation he admits having strong words with Reber, but he argues his justification based on his and his family’s testimony that he was provoked by Reber’s alleged belligerent and profane telephone calls. In the Cohan incident he admits he engaged in a struggle with Cohan, but that he did so because Cohan became belligerent, used profanity, resisted his efforts to place him under arrest and tried to escape. In effect, he argues that he was in the right in each instance and that the Board and the circuit court should have accepted his version and should have found no just cause for his dismissal.

The principles governing a review of a police officer’s dismissal have been well established in Illinois. Though cause has not been defined by statute it has been construed to mean some substantial shortcoming which renders an employee’s continuance in office in some way detrimental to the discipline and efficiency of the service, and which law and sound public opinion recognizes as good cause for his no longer holding the position. (Coursey v. Board of Fire & Police Commissioners, 90 Ill.App.2d 31). It is the commission, and not the court on review, who has the duty and the right to determine the credibility of the witnesses appearing before it (Davenport v. Board of Fire & Police Commissioners, 2 Ill.App.3d 864), and the court cannot substitute its judgment for that of the commission (DeGrazio v. Civil Service Commission, 31 Ill.2d 482), for the courts function is limited solely to ascertaining if the findings and decision of the administrative agency are against the manifest weight of the evidence. Rizzo v. Board of Fire & Police Commissioners, 131 Ill.App.2d 229.

Applying these rules to the facts before us we cannot fault the Board’s findings or its order dismissing plaintiff. The testimony of Reber and the disinterested telephone repairman was straightforward and credible, and the acts of plaintiff constituted a blatant attempt to use the power of his office to further his own personal objectives, and could do nothing but bring discredit upon the police department as a whole. The testimony of Cohan, supported by his brother and the mayor, was likewise credible, whereas plaintiffs story that his actions were provoked by Cohan’s resistance to arrest and attempt to escape would tax the credulity of the most naive. Rather, it appears that plaintiffs reactions were dictated by his uncontrollable anger to the obscenities allegedly voiced by Cohan. We can understand the provoking nature of obscene name-calling. However, we also believe that an experienced, competent police officer should have sufficient stature to control himself and resist the temptation to resort to physical violence,. particularly with reference to a 19-year-old boy neither posing nor offering any physical threat. The many able, reputable and hard working men and women who wear the badge of a police officer should not have to be categorized and judged by the improper and ruthless acts of one so obsessed with the power and authority of his office. We find that the evidence amply supported the findings of the Board and that plaintiffs discharge was necessary to retain public confidence and trust in the police department so that it might continue to operate efficiently in the City of Pana.

Plaintiff next contends that discharge proceedings were instigated against him solely because he exercised his right to appeal his 5-day suspension, and that the “official” charges were mere pretexts. From this contention he then argues that he cannot be discharged for exercising his legal right to appeal his suspension. We have difficulty following the logic of this argument. Clearly, his discharge was justified on the basis of the incidents above discussed. It may, or may not be, that plaintiffs attitude and actions following his suspension brought to a head the filing of formal charges against him, but, even if true, it does not follow that he was dismissed because of his appeal. The complaint listed a whole series of charges that occurred over a period of 2 or more years and it would appear that he was fortunate that a complaint had not been filed sooner. Plaintiffs discharge was determined by the substantiation of the charges filed and not by the fact that he appealed a suspension imposed on other charges.

Plaintiff next contends that two of the commissioners, Dr. F. W. Siegert and David L. Budds, were biased and prejudiced towards him and that by failing to disqualify themselves they denied plaintiff an impartial hearing. Plaintiff declined to make an offer of proof as to Dr. Siegert, but on appeal he argues that his prejudice was self-evident in his failure to disclose his interest in the Pana Community Hospital and his alleged irritation with plaintiffs counsel during the hearing. Dr. Siegert apparently was a life member of the hospital, being a resident doctor, and he had been a member of its board of directors. According to plaintiff those facts automatically show his bias and prejudice. Again we find his argument difficult to follow, for there is no evidence whatsoever that Dr. Siegert even knew of the hospital bill, nor is the bill itself the subject of the controversy. The issue involved is plaintiffs reaction to an attempt of an independent collection agency to collect an account. Dr. Siegert did on a couple of occasions urge counsel to get on with the hearing, but such remarks were directed solely to counsel and not to plaintiff. To construe them as showing prejudice towards plaintiff is unwarranted. The prejudice of Mr. Budds is alleged to have been shown by certain remarks he at one time made prior to this hearing and concerning another hearing involving plaintiff. Plaintiff had previously been charged with striking a fellow officer and Mr. Budds is alleged to have been heard to say that plaintiff should have been fired. However, Mr. Budds explained that his statement was taken out of context, that he had sat on the Board when plaintiff was acquitted of that charge and that he, Budds, had later said that if there had been more evidence probably both plaintiff and another officer should have been fired. The remark may have been ill-advised, subject as it is to a misconstruction, but in our opinion it demonstrates Mr. Budd’s fairness in refusing to convict except on sufficient evidence. We find no showing of prejudice on the part of either commissioner.

Finally, plaintiff contends that the Board’s refusal to hold public hearings constituted a violation of his constitutional right of due process and was contrary to the requirements of the Illinois Open Meeting Act (Ill. Rev. Stat., ch. 102, par. 41). He cites Morgan v. United States, 304 U.S. 1, 82 L.Ed. 1129, to the effect that in administrative proceedings of a quasi-judicial character, the liberty and property of the citizens shall be protected by the rudimentary requirements of fair play and that these demand a fair and open hearing. In Fitzgerald v. Hampton (D.C. Cir. 1972), 467 F.2d 755, the same principle is quoted and the court stated further that where a governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the protection afforded by due process of law entitles the individual to a fair trial, and that inherent in a fair trial is the right to an open ánd public hearing. As to the affect of a commission regulation providing for a closed hearing where the issue involves a possible termination of employment, the court held that since said regulation was admittedly designed for the benefit and protection of the employee there was no reason why his offer to waive the regulation should not have been accepted.

We agree with these principles but we believe the facts of the case before us give rise to an exception. From a review of the record it appears that plaintiff’s appeal of his 5-day suspension and the charges of misconduct were being considered together, but in sequence. On April 14, April 28, and May 12 evidence was heard on the question of plaintiffs suspension and these hearings were open to the public. Not until the hearing on May 25 did-the Board announce that subsequent hearings would be closed. Two reasons were cited, (1) the belief of the Board that under the exception provided in the Open Meeting Act they were entitled to close the hearing when its purpose was to consider the employment or dismissal of an employee or to hear testimony on a complaint lodged against an employee, and (2) the fact that at the previous hearings approximately 100 people were present and the proceedings were interrupted with frequent laughter and remarks from the audience. At the May 25 hearing it appears that the brother and wife of plaintiff were permitted to attend. No mention is made of the press and it cannot be - determined from the record whether or not the press was present. Later in this hearing there is evidence that the proceedings were interrupted by a number of plaintiff’s supporters outside the window of the hearing room shouting, “O.J., O.J., he is our man.” At the request of the chairman the plaintiff and his attorney went outside to try to control the individuals who were yelling, and the windows were closed to prevent a further disturbance. On June 10 plaintiff’s father and mother were permitted to attend, and it would appear that the press was excluded though the record is not clear on this point. One woman protested vigorously about three or five people running “a whole complete town just because your name is Budds, Armstrong or. Siegert [the commissioners] ánd a few other unmentionables.” On June 19 the record fails to reveal who specifically was in attendance other than plaintiff’s wife, but apparently the press did attend as this is indicated by Chairman Budds’ question to plaintiff’s counsel asking him if he “had any objection to the press sitting up here.” On June 26 when the members individually cast their votes in favor of plaintiffs discharge the meeting was open.

As stated in 21 Am. Jur. 2d Criminal Law §262 (1985), the right to a public trial even in a criminal case is not unlimited, but is subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of the parties, and witnesses, and generally, to further the administration of justice. And thereafter in section 264 it is stated that notwithstanding the constitutional guaranty of a public trial the trial court has a broad discretion to regulate attendance in a court room and has inherent power to do so for the purpose of preserving order and decorum. We believe that the hearing officers in an administrative proceeding have a like power and this view is impliedly recognized in Fitzgerald v. Hampton, supra, wherein the court saw fit to point out specifically that there was no evidence in that record that the presence of the public and press would have in any way impeded the hearing, disrupted the otherwise cahn atmosphere, or imposed additional burdens upon the commission which it could not handle.

In the present record there is such evidence, not only while the public was present in the hearings before May 25, but even after their exclusion when their yelling partisanship from outside the hearing room caused the proceedings to be delayed and necessitated the intercession of plaintiff and his counsel with the disrupters. It might even be said that this partisanship was fostered by plaintiff as indicated by the fact that he, his family, and friends had circulated a petition among the town’s residents seeking signatures approving and requesting plaintiff’s retention on the police force. This petition was submitted to the Board with the request that it be admitted into. evidence, but it was properly refused on the.grounds that the Board’s decision would rest solely on the basis of the evidence offered before it and that it would not be made, nor would the Board be influenced by a list of solicited votes as in a popularity contest. It is our conclusion on the basis of this record that the Board did not abuse its discretion in at times restricting attendance to plaintiff’s immediate family for in doing so it was properly exercising its duty to preserve order and decorum and thereby assure to all parties a fair and impartial consideration of the case on its merits.

The judgment of the Circuit Court of Christian County affirming the decision of the Board of Fire and Police Commissioners of the City of Pana is affirmed.

Affirmed.

CARTER, J., concurs.

Mr. PRESIDING JUSTICE GEORGE J. MORAN

dissenting:

Chief Sims, the sole instigator of the charges against Klein was appointed to his position on July 11, 1971, after having served as an aider-man for 2 years. He suspended Klein for 5 days on March 18, 1972, and Klein appealed the suspension. Then on April 7, 1972, Sims filed 14 charges against Klein only because Klein had exercised his right to appeal his 5-day suspension. The record is replete with evidence to this effect. Sims testified:

“If he can’t accept the fact that he had someone over him then I would try to do everything I could to see, after he appealed the suspension, that I would go ahead and see what charges I could find to have him dismissed.”

One charge the majority finds was sustained by the evidence concerned Klein’s argument with a bill collector who had been harassing Klein and his family for a debt which Klein claimed he did not owe. This incident occurred on July 3, 1969, which was 2 years before Sims became chief of police and almost 3 years before the charges were placed against him. The incident with Cohan occurred months before Sims became chief and 1 year before the charges were filed. The mayor of Pana was called. He knew of the incident when it happened but he preferred no charges. The then chief of police of Pana also knew about the incident and he preferred no charges.

Prior to the incidents which brought about Klein’s 5-day suspension, Sims and Klein had gotten along well and Klein had performed his job adequately. Sims testified:

“I told O. J. Klein to his face more than once that I really appreciated the cooperation I was getting from him, how he had worked, if there was something not complete at the end of my shift I left it to him and I pointed out to him and he carried it out, he carried the orders out real good. He had made the statement to me, he said, you know since you have been on I have enjoyed working on the Police Department or working in the Police Department more than any time in my life.’ He said, T really enjoy it.’ He said ‘this is something I never had before’ and I said, ‘this is the way it should be and I appreciate the fact that when I didn’t have something completed that he went ahead and carried it out and took care of different things that were pending.’ This is just the way it was. I figured things up to this time things were fine of this nature.”

Apparently no public official of Pana, including the mayor, the former chief of police and Sims himself had, prior to Sims’ five-day suspension, felt there was any cause to discharge Klein. In other words, prior to that time there was no substantial shortcoming which rendered continuance in his employment detrimental to the discipline of the service. This detriment only came about after he had appealed his 5-day suspension.

Cause for discharge in the case of a policeman has been held to mean some substantial shortcoming which renders continuance in his employment detrimental to the discipline of the service and something which the law and a sound public opinion recognize as a good cause for his no longer occupying his position. (Fantozzi v. Board of Fire & Police Commissioners, 27 Ill.2d 357.) By Sims’ own admission, Klein had served well for 3 years after the first incident and 1 year after the second. There was no indication his continued employment was detrimental to the discipline of the service because of either or both of these incidents.

Our supreme court stated in Fantozzi that the “* * * authority given the Fire and Police Commissioners to remove only for cause is not an arbitrary one, but is to be exercised on just and reasonable grounds.” (27 Ill.2d at 360.) It is not just and reasonable to resurrect old incidents to discharge a policeman because he chose to exercise the right of appeal he is allowed by the statute.

I would reverse.


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William H. Moore, Defendant-Appellant.
    (No. 73-276;
    Second District
    November 1, 1974.
    Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellant.
    James W. Jerz and Charles D. Sheehy, Jr., both of Model District State’s Attorneys Office, of Elgin, for the People.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. JUSTICE RECHENMACHER.

text:
    Mary Alda McFeely, Plaintiff-Appellant, v. James Lawrence McFeely, Defendant-Appellee.
    (No. 73-36;
    Second District
    October 31, 1974.
    Arthur Charles Holt, of Waukegan, for appellant.
    William G. Rosing, of Rosing & Carlson, of Waukegan, for appellee.
   Opinion by

Mr. JUSTICE RECHENMACHER.