author: Mr. PRESIDING JUSTICE ADESKO

text:
    Joseph Panico, Plaintiff-Appellant, v. William H. Robinson, Director, Department of Registration and Education, et al., Defendants-Appellees.
    (No. 58894;
    First District (4th Division)
    October 23, 1974.

      Dominic P. Gentile, Patrick A. Tuite, and Irwin G. Jann, all of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel, Assistant Attorney General, of counsel), for appellees.
    Torshen, Fortes & Eiger, Ltd., of Chicago (Jerome H. Torshen, of counsel), for amicus curiae Chicago Cosmetologists Association.
    Sherman Carmell, Sheldon M. Charone, and Stephen B. Horwitz, all of Chicago (Carmell & Charone, Ltd., of counsel), for amicus curiae Illinois State Barbers and Beauticians Association.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The plaintiff-appellant brought an action against the defendants seeking a declaratory judgment and permanent injunctive relief. The plaintiff alleged that he was a licensed cosmetologist and on June 1, 1972, had opened a business establishment at 6322 W. Cermalc Road, Berwyn, Illinois, commonly referred to as “Pánico the Haircutter” and/or “Pánico Hair Trends.” Plaintiff contended that he performed the services of styling and cutting the hair of male and female patrons and that he never performed any acts upon either male or female patrons which could be construed as shaving or clipping any body or facial hairs nor did he attempt to practice in any manner any business or occupation other than beauty culture. On August 24, 1972, plaintiff was served with an order of the defendant, William H. Robinson, in his official capacity as Director of Illinois Department of Registration and Education, which directed plaintiff to cease and desist from rendering his services to males. Rule VIII, G 1 and 2, of the Rules and Regulations for the Administration of the Reauty Culture Act limits to women patrons the cutting and trimming services a cosmetologist can render.* 2Plaintiff maintains that this rule is repugnant to the United States Constitution and the Constitution of the State of Illinois and sought a permanent injunction against defendants, Robinson and Pechous, from enforcing Rule VIII, C 1 and 2. It should be noted that the plaintiff is not nor has he ever been licensed to practice barbering within the State of Illinois.

The plaintiff’s complamt also alleged that on September 13, 1972, plaintiff was personally informed by the defendant, Donald Pechous, Chief of Registration, Inspection and Investigation, Illinois Department of Registration and Education, that the Department of Education was going to institute criminal proceedings against him pursuant to section 58(b)(1) of “An Act m relation to the practice of barbering * * *” (Ill. Rev. Stat. 1971, ch. 16%, par. 14.92(b)(1)). The statute states:

“(b) Each of the following constitutes a misdemeanor punishable upon conviction by a fine of not less than $25 nor more than $200 for the first offense, and for a second and subsequent offense, a fine of not less than $50 nor more than $500 and confinement m the county jail for not more than 6 months:
(1) The practice of barbering or an attempt to practice barbering without a valid and current certificate of registration as a registered barber.” (Ill. Rev. Stat. 1971, ch. 16%, par. 14.92(b) (1)0

The practice of barbering is defined as follows:

“Any one or any combination of the following practices constitutes the practice of barbenng: To shave or trim the beard or cut the hair; to give facial and scalp massage or facial and scalp treatment with oils, creams or other preparations either by hand or by mechanical appliances; to singe or shampoo the hair or apply a hair tonic; or to dye or tint the hah of any person: Provided that any person registered under the previsions of ‘An Act relating to the practice of beauty culture’, approved June 30,1925, as amended, shall be exempt from the provisions of this Act insofar as the practice of beauty culture under the provisions of said Act is authorized.” (Ill. Rev. Stat. 1971, ch. 16%, par. 14.39.)

A definition of the practice of beauty culture is contained in section 2 of “An Act relating to the practice of beauty culture” (Ill. Rev. Stat. 1971, ch. 16%, par. 16):

“Any one or any combination of the following practices constitutes the practice of beauty culture when done for cosmetic or beautifying purposes and not for the treatment of disease or of muscular or nervous disorder.
The application of cosmetic preparations to the human body by massaging, stroking, kneading, slapping, tapping, stimulating, manipulating, exercising, cleansing, beautifying, or by means of devices, apparatus or appliances; arranging, dressing, marcelling, curling, waving, cleansing, smgeing, bleaching, coloring, dyeing, tinting, or otherwise treating by any means the hair of any person. However, the provisions of this Act shall not authorize any registered beauty culturist to cut or clip the hair of any person unless he has first obtained a certificate of registration as a barber under the provisions of ‘An Act to regulate the pursuit of the business, art and avocation of a barber, and to insure the better qualifications of persons following such business in the State of Illinois,’ approved June 10, 1909, as amended.” (Emphasis added.)

Plaintiff stated that he could not construe section 5 of the barbering act and section 2 of the beauty culture act (Ill. Rev. Stat. 1971, ch. 16%, pars. 14.39 and 16) so as to determine the standard to which his conduct must comply and maintained that he was “on the horns of a dilemma in choosing his manner of practicing beauty culture.” Plaintiff sought a construction of the statutory provisions.

On November 2, 1972, the plaintiff filed a motion for summary judgment and on November 28, 1972, the case came on for hearing and evidence was presented to the trial court. The plaintiff elected to stand on his pleadings and the defense presented two witnesses. We deem it unnecessary to recount all of the evidence in detail. However, it is important to note certain aspects of the plaintiff’s testimony. Mr. Pánico was called by the defense as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat., 1971, ch. 110, par. 60). Mr. Pánico was asked the following question and gave the following response:

“Q. Now, at your present location do you cut hair for all people who come in?
A. Right. Well, I put restrictions on it. I am not qualified to, you know, to give like a taper up the back of the head. I refer them to a barber shop in the area. My clients are women and men with long hair.”

Mr. Pánico was asked what he did different from a barber and he responded:

“I am cutting longer hair. I feel like I am qualified to cut the longer hair. The thing I am doing different than a barber— * * * The thing I am doing different than a barber is I don’t do any shaving, any tapers; no crewcuts — nothing like that.”

The plaintiff was also asked the following question and gave the following response:

“Q. But isn’t it a fact that most of your haircutting is incidental to giving the styling of the hair?
A. The basic service in' the shop is a haircutting shop. You know, they are styled haircuts.”

Mr. Pánico did testify that he does decline to cut the hair of a customer if the length of the hair is too short to satisfy his restrictions and in these instances he refers the customers to neighborhood barber shops. The proof was closed and the trial court stated it would make a ruling at a later date.

On January 18, 1973, the trial court filed a memorandum opinion and ruling on the plaintiff’s motion for summary judgment. In rendering its decision the trial court specifically referred to the Illinois Supreme Court decision of Banghart v. Walsh, 339 Ill. 132, 171 N.E. 154 (1930), and stated that in BanghaH the Illinois Supreme Court recognized the limited cutting of hair as a necessary part of a cosmetologist’s occupation. The trial court stated:

“In construing the statute some forty years ago, the Illinois Supreme Court in Banghart v. Walsh, supra, declared that beauty culturists may cut hair where the service is merely incident to hairstyling and arranging. Neither that case, nor the statute, give beauty culturists a license to cut hair generally. The legislature, in its wisdom, reserved hair cutting to a class of persons who must complete a more comprehensive study of anatomy, physiology, pharmacology, and the actual skills of cutting hair with shears, razors, thinning shears,' clippers and comb, etc. The length of time spent in study, practice and' supervision is longer than that required for cosmetology. The only ’evidence introduced on this issue demonstrated the need for these stricter requirements to protect the health and safety of the public. It is not for this Court to set aside the detailed course of study required by legislative ■ enactment for hair cutting.
In order to perform the services of a beauty culturist, the plaintiff must meet the requirements of that statute. This he has done. In order to cut hair, the plaintiff must meet the further requirements of the barbering statute. This he has not done.”

The trial court also stated:

“There has been no evidence presented to argue that the health and safety considerations implicit in the statute differ with the length of the hair being cut. Therefore, the plaintiff as a cosmetologist may not cut the hair of his customers, women or men. This occupation is statutorily within the competence of only those persons who meet the requirements for obtaining a barber’s license.”

The trial court also held that those services which a cosmetologist is licensed to perform may be performed upon both women and male patrons but that “these services do not include cutting hair whether such hair is 1-1/16 inches long or 6 inches long.”

The trial court’s order was filed on January 22, 1973, and held Rule VIII, G 1 and 2, of the Rules and Regulations for the Administration of the Beauty Culture Act unconstitutional insofar as it prohibits the cutting and trimming of a woman’s hair incidental to styling and arranging the hair. In this respect the plaintiff’s motion for summary judgment was granted. The trial court’s order also stated that the Statute (Ill. Rev. Stat. 1971, ch. 16%, par. 14.92) which prohibits the practice of barbering without a valid and current certificate of registration is constitutional and should be enforced without regard to the sex of the person upon whom barbering is performed. Thé order also stated that it is violative of sections 5 and 58 of the barbering act (Ill. Rev. Stat. 1971, ch. 16%, pars. 14.39 and 14.92) for a cosmetologist to cut the hair of his patrons. In regards to these matters the plaintiff’s motion for summary judgment was denied. The trial court’s order also stated, “Insofar as this order is inconsistent with Banghart v. Walsh, 339 Ill. 132 (1930), the order is stayed since this court does not have the power to overrule or affect Banghart v. Walsh.”

There apparently was some confusion on the part of the parties in interpreting the trial court’s order and on February 1, 1973, the court filed a supplemental memorandum for the purpose of clarification. In this opinion the court reiterated its holding that Rule VIII, G 1 and 2, of the Rules and Regulations for the Administration of the Beauty Culture Act is unconstitutional “on the ground that the regulation discriminates between the sexes without regard to reasons of health or safety and, upon no other valid basis.” The trial court once again referred to our supreme court’s decision in Banghart v. Walsh, supra, and stated that- Banghart rewrote section 2 of the beauty culture act (Ill. Rev. Stat. 1971, ch. 16%, par. 16), “by limiting the inhibitions of the last sentence of that section to prohibit the cutting or clipping of the hair of men only, rather than prohibiting the cutting or clipping of the hair ‘of any person as provided by the statute.” The trial court went on to express its opinion that the Banghart decision was unconstitutional for the same reason that it had held Rule VIII, G 1 and 2, unconstitutional. However, the trial court recognized that it was without authority to overrule or affect our Supreme Court’s decision in Banghart. The court stated, “Thus, by virtue of Banghart, the cosmetologists may cut and trim the hair of women incidental to the arranging and dressing of women’s hair until the Supreme Court of this state or the legislature enunciates its decision reviewing this court’s order of January 22, 1973; or the legislature enacts remedial legislation.” The trial court concluded by stating that tire plaintiff and other cosmetologists cannot cut or trim the hair of men without violating sections 5 and 58 of the barbering act (Ill. Rev. Stat. 1971, ch. 16%, pars. 14.39 and 14.92) “because the regulation which this court held unconstitutional did no more tiran codify the decision in Banghart v. Walsh and leaves that decision as expressive of the law of this State until overruled by the Supreme Court of this State.” The plaintiff has appealed from these rulings.

The plaintiff maintains that the trial court erred in declaring that cosmetologists are statutorily prohibited from cutting the hair of their patrons. Plaintiff contends that the Illinois Supreme Court in Banghart v. Walsh, supra, held that cosmetologists are competent and qualified to cut the hair of their patrons. It is the plaintiff’s contention that the trial court did not clearly define what a cosmetologist’s services can include and that the trial court overruled the decision in Banghart while giving lip service to recognizing that it was without authority to do so. Plaintiff contends that the operation that a beauty culturist can perform within the confines of the law is dependent on the type of hair style that the cosmetologist is creating and not the sex of the bearer of that hair style. The defendants in response to the plaintiff’s contentions maintain that our supreme court in Banghart held that a cosmetologist could only cut hair incidental to styling and arranging the hair and that the Illinois Supreme Court did not rule that cosmetologists could cut hair as a principal part of their trade. Defendants take the position based on the evidence presented to the trial court that the plaintiff was principally engaged in cutting hair and was not cutting and trimming hair incidental to styling and arranging the hair of his patrons. Defendants also maintain that the trades of a cosmetologist and a barber are separate and distinct and that a cosmetologist is not qualified to cut hair generally because he is not trained in said art. It is the contention of the defendants that the trial court did not err in ruling that cosmetologists may not cut their patrons’ hair.

In this case two amici curiae sought leave of this court to submit briefs and present oral arguments and such leave was granted. The Chicago Cosmetologists Association, Inc., appeared in support of the plaintiff and the Illinois State Barbers’ and Beauticians’ Association entered the case on the defendants’ side. The brief of the Chicago Cosmetologists Association is centered on the position that the administrative scheme sought to be enforced by the defendants in which cosmetologists are not permitted to cut or trim men’s hair is constitutionally impermissible. The Illinois State Barbers’ and Beauticians’ Association characterizes the issue involved as whether section 2 of the beauty culture act (Ill. Rev. Stat. 1971, ch. 16%, par. 16) which prohibits a beauty culturist from cutting the hair of any person unless he has a barber’s license is a valid exercise of police power. The Barbers’ and Beauticians’ Association maintains that section 2 is a valid exercise of the police power and contend that the proviso in section 2 is constitutionally permissible notwithstanding the Illinois Supreme Court decision in Banghart v. Walsh, supra.

We have perused the trial court’s memorandum opinion and ruling and supplemental memorandum on the plaintiff’s motion for summary judgment several times and conclude that it is not susceptible of a definitive interpretation. It is plausible to construe the trial court’s memoranda as finding that a cosmetologist may cut and trim the hair of his patrons incidental to styling and arranging their hair but that a cosmetologist may not engage in the general practice of cutting hair. Support for this interpretation is found in the trial court’s recognition of the Illinois Supreme Court’s ruling in Banghart that beauty culturists may cut hair where the cutting or trimming is merely incidental to hair styling and arranging and the trial court’s statement that “[n] either that case, nor the statute, give beauty culturists a license to cut hair generally.” However, equally plausible is the interpretation that the trial court held that a cosmetologist may not cut the hair of any person. This interpretation is supported by statements of the trial court in its original memorandum opinion and ruling and in the court’s order. In its original memorandum the trial court stated, “Therefore, the plaintiff as a cosmetologist may not cut the hair of his customers, women or men. This occupation is statutorily within the competence of only those persons who meet the requirements for obtaining a barber’s license.” In referring to the services that a cosmetologist can legally render the court stated, “These services do not include cutting hair whether such hair is H/ie inches long or 6 inches long.” The order of the trial court recited, “It is violative of Sections 14.39 and 14.92 of chapter 16% for a cosmetologist to cut the hair of his patrons.” Despite this ambiguity in the memoranda and order of the trial court it is not necessary to belabor this point because the court stayed its order to the extent it was inconsistent with the Illinois Supreme Court decision in Banghart v. Walsh, supra. Therefore, the net effect and end result of the proceedings in the trial court is that cosmetologists are permitted to cut and trim the hair of their female patrons when such cutting and trimming is done incidental to styling and arranging their hair. However, a cosmetologist may not cut hair as a principal part of his trade, nor may he cut or trim the hair of his male patrons even when such cutting or trimming is merely incidental to styling and arranging the hair. This is true despite the fact that the trial court found Rule VIII, G 1 and 2, of the Rules and Regulations for the Administration of the Beauty Culture Act, which is merely a codification of the Illinois Supreme Court’s decision in Banghart, unconstitutional. The trial court realized it was without power or authority to overrule or affect the decision in Banghart.

There is no appeal or cross-appeal taken from the trial court’s ruling that Rule VIII, G 1 and 2, of the Rules and Regulations for the Administration of the Beauty Culture Act is unconstitutional. We agree with the trial court’s determination of unconstitutionality but would so find on a different ground. The trial court correctly perceived that it was without the power and authority to overrule or affect the Illinois Supreme Court decision of Banghart v. Walsh, but the trial court’s limitation of its holding was error to the extent that it felt compelled to hold, despite finding Rule VIII, G 1 and 2, unconstitutional, that cosmetologists can only cut and trim women’s hair incidental to styling and arranging the hair. As we have previously stated, the Illinois Supreme Court in Banghart v. Walsh, supra, held that cosmetologists could cut and trim the hair of their women patrons incidental to styling and arranging their hair. The court stated at 133: “The shaving and trimming of beards is no part of the business or occupation of the beauty-shop operator or beauty culturist, but it is a necessary part of their work, incidental to arranging and dressing of women’s hair to cut and trim the hair.” The decision in Banghart was rendered in 1930 and the limitation of the court’s holding to womens hair was merely reflective of the social climate that existed in 1930 and the social context in which the case was decided. This is evident from the court’s statement at page 138: “The occupation of barber, as alleged in the bill and admitted by the answer, is made up principally of men and is practiced upon the persons of men, while the occupation of beauty-shop operator or beauty culturist is made up principally of women and is practiced on the persons of women.” This is no longer true and we take judicial notice of the fact that the trades of barber and cosmetologist are practiced by both males and females and that members of either sex patronize both. We are, therefore, of the opinion that the trial court erred to the extent that it felt compelled to limit its holding that Rule VIII, G 1 and 2, was unconstitutional by virtue of the decision in Banghart. As we previously alluded to, the end result of the proceedings in the trial court was to reiterate the holding in Banghart that cosmetologists may cut and trim the hair of their women patrons incidental to styling and arrangmg their hair despite the trial court’s finding that Rule VIII, G 1 and 2, is unconstitutional. Since we are of the opinion that the limitation of tire decision in Banghart to women was merely reflective of the social climate and context in which the decision was rendered, we find that it was unnecessary for the tidal court to limit and stay its decision in this regard. Therefore, we are of the opinion that cosmetologists may cut and trim the hair of their male and female patrons when such cutting and trimming is performed incidental to styling and arranging their hair.

This court is cognizant of the fact that it does not possess any greater authority or power than do the circuit courts in regards to overruling or affecting decisions of the Illinois Supreme Court. As was stated in Agricultural Transportation Association v. Carpentier, 2 Ill.2d 19, 27, 116 N.E.2d 863, 867 (1953):

“Where the Supreme Court has declared the law on any point, it alone can overrule and modify its previous opinion, and the lower judicial tribunals are bound by such decision and it is the duty of such lower tribunals to follow such decision in similar cases.” (Citations omitted.)

The interpretation that we have given to the Banghart decision is not tantamount to overruling that decision. It cannot be refuted that the social climate and era of contemporary times is vastly different tiran existed at the time of the Banghart decision. In the case of Daley v. Meier, 33 Ill.App.2d 218, 178 N.E.2d 691 (1961), after the court recognized its duty to follow decisions of tire Illinois Supreme Court it stated at page 223:

“However, we believe this rule does not prevent our following the reasoning of the Supreme Court on a question and extending it to facts not previously presented to the Supreme Court for decision.”

Similarly, our finding that cosmetologists may cut and trim the hair of both their male and female patrons when such cutting and trimming is done incidental to styling and arranging the hair merely follows the decision of Banghart and extends it to a factual situation not previously presented to our supreme court.

As previously stated, plaintiff maintains that the Illinois Supreme Court in Banghart v. Walsh, supra, held that cosmetologists are competent and qualified to cut the hair of their patrons. We have thoroughly reviewed the Banghart decision and disagree with the plaintiff. The plaintiffs in Banghart brought suit to have declared unconstitutional section 18 of the barbers act as amended in 1929. The section defined the practice of barbering and contained a proviso stating, “that nothing contained in this act shall be construed to include so-called beauty shops or hairdressing parlors patronized by women, except as to the cutting of hair.” (Laws of 1929, p. 194.) (Emphasis added.) The court, in its opinion, also referred to section 2 of the beauty culture act of 1925 which after defining the practice of beauty culture stated that a cosmetologist was not authorized to cut the hair of any person without first obtaining a certificate of registration as a barber. (Ill. Rev. Stat. 1971, ch. 16%, par. 16.) As we previously stated, that court in Banghart recognized that it is a necessary part of a cosmetologist’s work incidental to arranging and styling a woman’s hair to cut and trim the hair. The court stated at page 140:

“The incidental part of the trade of beauty culture, consisting of cutting and trimming hair, is taken from that trade and given to the trade of barber under the guise of a police regulation, which can find no support as a reasonable measure either to preserve the health or to secure the safety, welfare or comfort of society.”

The court held that section 18 of the barbers act violated both the constitutions of the United States and State of Illinois in that it deprived the plaintiffs of their liberty and property without due process of law. There is nothing in the Banghart decision to indicate that cosmetologists were found to be competent and qualified to cut hair generally. It was only cutting and trimming hair incidental to styling and arranging the hair that was found to be within the competency of beauty culturists.

We agree with defendant’s contention that the plaintiff in the case at bar was principally engaged in cutting hair. This is evident from the plaintiffs own response to the question of whether most of his hair-cutting was incidental to styling hair. He responded, “The basic service in the shop is a haircutting shop. You know, they are styled haircuts.” While we are of the opinion that a cosmetologist may cut and trim the hair of both his male and female patrons when such cutting and trimming is incidental to styling and arranging the hair, a cosmetologist cannot hold himself out to be a barber nor may he generally engage in the practice of cutting hair. To do so would be to violate sections 5 and 58 (b) (1) of the barbering act (Ill. Rev. Stat. 1971, ch. 16%, pars. 14.39 and 14.92(b)(1)).

Plaintiff has cited several authorities in support of his position, but we find them to be unpersuasive. In the case of Jeffs v. Board of Examiners, 320 Mich. 78, 30 N.W.2d 445 (1948), the court cited with approval a statement of the trial court. It was stated at page 83:

“On the other hand, when hair cutting as practiced on the individual or on customers in general, becomes the important or main feature of the process, and not the incident thereto, then the requirements of section 2(b) * * * [Comp. Laws Supp. 1940, § 8714 — 2, Stat. Ann. 1946 Cum. Supp. § 18.132] apply, and such operator must obtain a license in accordance with the aforementioned provision.”

The statutory provision referred to prohibited a cosmetologist from' cutting or clipping the hair of any person unless he first obtains a barber’s license. Jeffs is not supportive of the plaintiff’s position but is to the contrary. The plaintiff by his own admission was basically engaged' in haircutting and as found in Jeffs this cannot be permitted without first obtaining a barber’s license.

Amicus, Illinois State Barbers’ and Beauticians’ Association, maintains that section 2 of the beauty culture act (Ill. Rev. Stat. 1971, ch. 16%, par. 16) is a valid exercise of the police power and that tire proviso in section 2 which prohibits a cosmetologist from cutting the hair of any person is constitutionally permissible notwithstanding the Illinois Supreme Court decision in Banghart v. Walsh, supra. The Barbers’ and Beauticians’ Association stated in its brief:

“But today, Banghart is of no precedential value and as is seen from its reliance upon cases such as Union Slaughter House Co. v. Crescent City Livestock Co., 111 U.S. 746 (1884) and Allgeyer v. Louisiana, 165 U.S. 578 (1897), Banghart represents a compendium of constitutional law of an ‘era long ago passed into history.’ Dandridge v. Williams, 397 U.S. 471, 485 (1970); Lincoln Fed. L.U. v. Northwestern I. & M. Co. 335 U.S. 525, 536 (1949).”

The Association contends that the proscription in section 2 is not violative of due process when tested against modern constitutional principles. If this were a case of first impression, we might tend to agree with the Association. (See Lincoln Federal Labor Union v. Northwestern Iron and Metal Co., 335 U.S. 525, 93 L.Ed. 212, 69 S. Ct. 251 (1949); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 99 L.Ed. 563, 75 S. Ct. 461 (1955); Ferguson v. Skrupa, 372 U.S. 726, 10 L.Ed.2d 93, 83 S. Ct. 1028 (1963); contra, Allgeyer v. Louisiana, 165 U.S. 578, 41 L.Ed. 832, 17 S. Ct. 427 (1897); Lochner v. New York, 198 U.S. 45, 49 L.Ed. 937, 25 S. Ct. 539 (1905).) However, this is not a case of first impression and as we previously alluded to, this court is duty bound to follow the Illinois Supreme Court’s decision in Banghart. As the trial court correctly stated in its original memorandum op'nion and ruling the proviso in section 2 was diluted by the decision in Banghart. We are cognizant of the fact that the statutory provision under challenge in Banghart was the proviso to section 18 of the barbers’ act as amended in 1929 while the statute at issue in the case at bar is section 2 of the beauty culture act (Ill. Rev. Stat. 1971, ch. 16%, par. 16). However, the thrust of the proscriptions in both statutes is identical and the decision of the Illinois Supreme Court in Banghart is equally applicable to the proviso in section 2. An apparent conflict exists between the proscription in section 2 and the decision by our supreme court in Banghart. However, a resolution of this apparent conflict must necessarily come from action of the Illinois Supreme Court or the Illinois General Assembly and not this court. For this court to follow the avenue of approach outlined by amicus, Illinois State Barbers’ and Beauticians’ Association, would not be merely following the reasoning of our supreme court on a question and extending it to a factual situation not previously presented to the supreme court. It would amount to overruling the Illinois Supreme Court’s decision in Banghart which is beyond the power, and authority of this court.

In order to avoid the confusion that arose in the trial court in regard to its findings we deem it appropriate to reiterate this court’s findings. First, the trial court is reversed to the extent that it felt compelled by die Illinois Supreme Court’s decision in Banghart v. Walsh, supra, to limit and stay its decision that Rule VIII, G 1 and 2, of the Rules and Regulations for the Administration of the Beauty Culture Act is unconstitutional. Therefore, cosmetologists may cut and trim the hair of their male and female patrons when such cutting and trimming is performed incidental to styling and arranging their hair. We affirm the trial court’s finding that section 58 of the barbering act (Ill. Rev. Stat. 1971, ch. 16%, par. 14.92) is constitutional and should be enforced without regard to the sex of the person upon whom barbering is performed. A cosmetologist, therefore, may not hold himself out to be a barber nor may he generally engage in the practice of cutting hair. As we previously stated, to do so would be a violation of sections 5 and 58(b)(1) of the barbering act (Ill. Rev. Stat. 1971, ch. 16%, pars. 14.39 and 14.92(b) (1)).

The decision of the Circuit Court of Cook County is, therefore, reversed in part and affirmed in part.

Reversed in part and affirmed in part.

BURMAN and JOHNSON, JJ., concur.

       The rule in pertinent part states as follows:
      “Unprofessional conduct, which is specified as a ground for the revocation and suspension of a certificate of registration under Section 12(k) of the Illinois Beauty Culture Act, includes, but is not limited to the following:
      1. Cutting or trimming hair, unless same is done in connection with arranging or dressing of women’s hair.
      2. Advertising haircutting or trimming of hair unless it is offered in connection with the dressing or arranging of women’s hair.”

       The plaintiff’s brief contained arguments based on the constitutional grounds of equal protection and sex discrimination and bias. However, during oral argument plaintiff’s counsel conceded that the case came before this court on narrower grounds and abandoned his constitutional arguments. We agree and therefore, it is unnecessary to go into these areas.

       The proviso in pertinent part states: “However, the provisions of this Act shall not authorize any registered beauty culturist to cut or clip the hair of any person unless he first obtained a certificate of registration as a barber * * a.” (Ill. Rev. Stat. 1971, ch. 16%, par. 16.)

       The trial court’s rationale for holding Rule VIII, G 1 and 2 unconstitutional was that it “discriminates between the sexes without regard to reasons of health or safety and, upon no other valid basis.” The trial court, therefore, concluded that Rule VIII, G 1 and 2, was violative of the equal protection rights guaranteed by both the United States and Illinois Constitutions. As we perceive this case we do not agree that it is a case of sex discrimination. The party complaining, Mr. Pánico, was not denied equality of rights based upon his sex. Cosmetologists, whether male or female, are prohibited by Rule VIII, G 1 and 2, from cutting the hair of their male patrons while being permitted to cut their women patrons’ hair when such cutting is incidental to styling and arranging the hair. Barbers are statutorily permitted to cut the hair of both males and females. Therefore, Rule VIII, G 1 and 2, imposes a classification of haircutters and as the pla'ntiff maintained in the trial court the classification is imposed not on the haircutters ability to cut hair but oq the sex of their customers. In determining the constitutionality of such classifications the test to be applied is whether a reasonable or rational relationship exists between the classification and a legitimate state interest. (Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 31 L.Ed.2d 768, 777, 92 S. Ct. 1400, 1405 (1972); Morey v. Doud, 354 U.S. 457, 463 to 464, 1 L.Ed.2d 1485, 1490, 77 S. Ct. 1344, 1349 (1957); Edelen v. Hogsett, 44 Ill.2d 215, 221, 254 N.E.2d 435, 439 (1969); Latham v. Board of Education, 31 Ill.2d 178, 185, 201 N.E.2d 111, 115 (1964); Village of Cahokia v. Wright, 11 Ill.App.3d 124, 131, 296 N.E.2d 30, 34 to 35 (1973).) If the issue of the constitutionality of Rule VIII, G 1 and 2, were properly before this court we would, as did the trial court, find the rule unconstitutional but on the ground that no reasonable or rational relationship exists between the classification and a legitimate state interest. See, Maryland State Board of Barber Examiners v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973); also see, Pavone v. Louisiana State Board of Barber Examiners (E.D. La.), 364 F. Supp. 961 (1973).

       The Barbers’ and Beauticians’ Association recognized this in its brief when after referring to the two statutory provisions it stated: “If this were the only distinction between the cases, Amicus’ task would, admittedly, be nearly insurmountable.”


source: Caselaw Access Project

author: Mr. JUSTICE JOHNSON

license: Public Domain

text:
    Clara Cheatem, Plaintiff-Appellant, v. James A. Cook, Defendant—(Coronet Insurance Company, Garnishee Defendant-Appellee).
    (No. 60084;
    First District (4th Division)
    October 23, 1974.
    Martin Tiersky, of Chicago, for appellant.
    Haft, Shapiro & Haft, of Chicago (Morris A. Haft, of counsel), for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff filed a garnishment action against Coronet Insurance Company to recover interest allegedly due on a prior judgment entered against James A. Cook, its insured. In a motion for summary judgment, plaintiff alleged that Coronet was obligated to pay interest from the date of the judgment against Cook until the date the judgment was finaHy paid. The trial court denied plaintiffs motion for summary judgment and dismissed the proceedings against Coronet on the grounds of res judicata and estoppel by verdict.

On November 24, 1965, James A. Cook was involved in an automobile accident with the plaintiff, Clara Cheatem. Plaintiff filed an action against Cook, who tendered his defense to Coronet Insurance Company pursuant to an automobile liability policy issued by Coronet to Cook for 1 year s coverage on June 30, 1965. Coronet denied liability on the policy and refused to defend the suit. A default judgment was entered against Cook on December 11, 1967 in the amount of $15,000, plus costs.

Plaintiff instituted garnishment proceedings against Coronet on December 26, 1967. The garnishment was defended by Coronet on the ground that the policy had been cancelled by Cook’s broker prior to the time of the accident. Following a trial of the garnishment, the court found that the purported cancellation of the policy was ineffectual. On March 30, 1971, judgment was entered against Coronet and in favor of Cook in the amount of $10,000, the stated limit of the policy, plus costs.

Coronet filed a notice of appeal from that judgment on April 1, 1971. Subsequently, on April 14, 1971, plaintiff filed a motion in the trial court requesting that the judgment be modified to correct the form and also to include interest which had accrued on the default judgment of December 11, 1967, against Cook. The court ordered that judgment be entered in favor of the judgment debtor, James A. Cook, for the use of the plaintiff, Clara Cheatem. Further, the trial court denied plaintiff’s motion to increase the amount of the judgment to include interest. Plaintiff then filed a notice of cross-appeal which requested judgment against Coronet in the sum of $10,000 plus interest on the $15,000 judgment “from December 11, 1967, until the date judgment is entered herein plus costs or, in the alternative, that said judgment be reversed and remanded to the Circuit Court of Cook County, Illinois, with instructions to enter that judgment.”

On November 1, 1972, this court filed its opinion, reported in 8 Ill.App.3d 425, 290 N.E.2d 707, wherein the judgment of the trial court was affirmed in part and reversed in part. The trial court’s action of March 30, 1971, in entering judgment of $10,000 and costs in favor of Cook, was affirmed. This court held:

“We find the cancellation of the policy by Coronet to be invalid and, therefore, hold the policy of liability insurance issued by Coronet to James A. Cook was in full force and effect on November 24, 1965, the date of defendant Cook’s accident with the plaintiff.” (8 Ill.App.3d 425, 429.)

However, the order entered by the trial court on April 14, 1971, which modified the form of the prior judgment and denied plaintiffs claim for interest, was reversed on the ground that the lower court was divested of all jurisdiction in the matter by the filing of a notice of appeal prior to the entry of its order.

Coronet’s petition for rehearing in the appellate court was denied. It then filed a petition for leave to appeal to the supreme court, which was also denied. On August 9, 1973, Coronet paid Clara Cheatem $11,496.16: $10,000 as the principal of the judgment rendered against it on March 30, 1971; $69.16 as payment for costs; and $1427 as interest on $10,000 from March 30, 1971, to August 8, 1973, at 6 percent per annum. A written satisfaction (release) of judgment, signed by the plaintiff and her attorney, recited that plaintiff, “having received full satisfaction and payment, releases the judgment entered on March 30, 1971, against Coronet Insurance Company for $10,000.00 and costs and interest.” The release was filed with the clerk of tire circuit court on August 23, 1973.

On September 26, 1973, plaintiff filed a new garnishment action against Coronet. The affidavit for garnishment stated that judgment was entered on December 11, 1967, in the amount of $15,000 and costs, that $10,000 had been paid on the judgment, that $5000 remained unpaid on the principal judgment, and that $3,447.28 in interest was still owed. Plaintiff then filed a motion for summary judgment in the amount of $3,447.28 plus costs, alleging that Coronet was obligated to pay interest on the judgment of December 11, 1967, from the date it was entered until the date of final payment. Coronet filed objections to plaintiff’s motion and a counter-motion for discharge on the ground that the claim which formed the basis for plaintiff’s motion for summary judgment had been previously adjudicated. The court, on December 28, 1973, allowed Coronet’s motion for discharge and ruled that plaintiff’s claim was barred on the grounds of res judicata and estoppel by verdict.

Plaintiff appeals from the court’s order of December 28, 1973, and presents the following issues for review: (1) Whether the trial court erred in finding that plaintiff’s claim was previously adjudicated, and (2) whether the trial court erred in denying plaintiff’s motion for summary judgment.

The first question we shall consider is whether the trial court erred in finding that plaintiff’s claim for interest was previously adjudicated. That portion of the court’s order of December 28, 1973 pertinent to this issue is presented below:

“2. The Court finds that heretofore on March 30, 1971, in a trial on the contest of the Answer of CORONET INSURANCE COMPANY, garnishee, on garnishment proceedings theretofore brought by the plaintiff herein against it, the trial Court found for the plaintiff and entered judgment against the garnishee for the sum of $10,000; that prior to and subsequent to the entry of such judgment, plaintiff had requested the trial Court allow to her interest on the original December 11, 1967 judgment for $15,000 herein rendered against the defendant, JAMES A. COOK, and that such judgment for $10,000 be increased to $12,755.31 on account thereof; the motion to increase the judgment to include interest was denied.
That thereafter, CORONET INSURANCE COMPANY, garnishee, appealed such judgment to the Appellate Court of Illinois, First District, in Cause No. 56139, which had before it all matters presently before the Court; that plaintiff filed a Cross-Appeal wherein plaintiff prayed that the Appellate Court enter judgment against the garnishee for the interest sought; that by its Opinion the Appellate Court affirmed the trial court, and by its Mandate adjudged that the original judgment for $10,000 of the Circuit Court of Cook County is affirmed; that the judgment so entered remain in full force and effect; the Appellate Court did not allow the plaintiff the interest sought by her.”

The court then found that plaintiff’s claim for interest had been previously adjudicated and the judgments so entered conclusive of all matters arising out of the controvery between the parties. Therefore, the court sustained Coronet’s counter-motion to dismiss the garnishment proceedings then pending on the grounds of res judicata and estoppel by verdict.

We agree with the findings of the trial court that plaintiff*s claim for interest was previously adjudicated and thereby barred on the grounds of res judicata and estoppel by verdict. The doctrine of res judicata provides that a cause of action once adjudicated by a court of competent jurisdiction cannot be tried again between the same parties or their privies in new proceedings, before the same or a different tribunal, except in an action to set aside or review the prior adjudication. (Workmen’s Lumber & Construction Co. v. Martin (1970), 121 Ill.App.2d 352, 257 N.E.2d 494; Schoenbrod v. Rosenthal (1962), 36 Ill.App.2d 112, 183 N.E.2d 188.) The rule of res judicata includes not only those matters that were actually determined in the former case between the same parties or their privies, but it extends to any other matters properly involved which might have been raised and determined but were not. Prochotsky v. Union Central Life Insurance Co. (1971), 2 Ill.App.3d 354, 276 N.E.2d 388; Phelps v. City of Chicago (1928), 331 Ill. 80, 162 N.E. 119.

In the instant case, it is uncontroverted that plaintiff requested interest on the original judgment during the trial court proceedings and again while the cause was before this court in the prior appeal. On March 30, 1971, plaintiff presented a judgment order of $10,000 to the trial court which made no mention of interest on the 1967 judgment. Plaintiff first brought this claim before the trial court in a motion to increase the judgment to include interest on April 14, 1971. The trial court denied the motion. Subsequently, tire appellate court ruled that the trial court was without jurisdiction over the matters before it on April 14, 1971, because a notice of appeal had previously been filed by Coronet. However, this court affirmed the trial court’s order in entering judgment for $10,000 and costs only, despite plaintiffs prayer for interest on the $15,000 judgment as well. Thus, plaintiff’s claim for interest was before this court during the prior appeal, and the interest sought by her was not allowed.

In Lyon v. Metropolitan Life Insurance Co. (1942), 315 Ill.App. 451, 43 N.E.2d 187, an action was brought against the Metropolitan Life Insurance Company to recover interest only on a judgment previously entered against the defendant on a policy of life insurance. The original suit sought judgment in the amount of $10,000 and interest at the rate of 6 percent from the date of death of the insured. A verdict was returned for $9,768.45, there being an outstanding loan against the policy of $231.55. The judgment was paid, along with statutory interest from the date of its rendition until the date of payment. Thereafter, plaintiff again filed suit against the insurance company seeking interest at the rate of 5 percent from the date of the insured’s death until judgment was entered in the original suit. The appellate court found that plaintiffs claim for interest was not withdrawn from consideration of the jury in the original action and that the judgment entered was conclusive as to all matters arising out of the insurance policy. Thus, the court held that plaintiffs separate suit for interest was barred by the judgment entered in the prior suit.

In view of the foregoing authorities, we find no merit in plaintiffs contention that the trial court erred in finding that her claim was previously adjudicated.

Plaintiff’s argument that the trial court erred in denying her motion for summary judgment is based upon the “Supplementary Payments” provision of the policy issued by Coronet to its insured. The provision obligated Coronet to pay:

“* * * all interest on the entire amount of any judgment therein which accures [sic] after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon; ° *

Plaintiff argues that its motion for summary judgment should have been allowed since there was no factual dispute and the plain language of the policy entitled her to the interest claimed.

We believe that the same claim for interest is involved in both the prior and the present proceedings. In Ernest Freeeman & Co. v. Robert G. Regan Co. (1947), 332 Ill.App. 637, 645, 76 N.E.2d 514, 517, the court held that where a demand or right of action is in its nature entire and indivisible, it cannot be split up into several causes of action or made the basis of many separate suits. The court said:

“* * * [A] judgment on the merits as to one part will bar a subsequent action for the whole, the residue, or another part. It is immaterial that the form of the second action is different from the first. * * * [Wjhether or not a judgment is a bar to a subsequent action under the rule against splitting causes of action depends on whether the entire amount claimed to be due plaintiff arises out of one and the same act or contract, or whether the several parts arise from distinct acts or contracts.”

We hold that plaintiffs claim for interest arose out of the same contract in both the present and the prior proceedings. Therefore, the trial judge did not err in denying her motion for summary judgment and allowing Coronet’s motion for discharge from the garnishment proceedings.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE BURMAN

text:
    The Village of Glencoe, Plaintiff-Appellant, v. The Metropolitan Sanitary District of Greater Chicago, Defendant-Appellee.
    (No. 60132;
    First District (4th Division)
    October 23, 1974.

      G. Kent Yowell, of Northbrook, for appellant.
    Allen S. Lavin, of Chicago (Charles W. Boyd, Phillip Rothenberg, Paul C. Sheils, and James B. Murray, of counsel), for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

In July of 1972 the. Metropolitan Sanitary District of Greater Chicago (District) notified the Village of Glencoe (Village) that it was discharging wastes into the waters of the District in violation of its Sewage and Waste Control Ordinance. The parties conferred, but .were unable to reach a successful conciliation. Shortly thereafter, a pollution control officer of the District took grab samples of the Village’s discharge. On November 22, 1972, the District notified the Village that it was to. appear before a hearing officer and. show cause why such a discharge, should not be discontinued. A hearing was held before a hearing officer, and evidence was received including the results of samples and tests taken by both parties at a tap near the point of discharge. The hearing officer concluded that the Village was discharging pollutants in violation of the ordinance. Subsequently, the Village appeared before the Board of Trustees of the District. After a hearing before the Board, the Village was ordered to cease and desist from violating the ordinance. The Village filed an action in the circuit court seeking review under the Administrative Review Act. The trial court affirmed the order of the Board of Trustees, and the Village appeals.

The Village operates a water filtration plant which is located on the shoreline of Lake Michigan. The plant receives raw lake water and passes it through a succession of purification devices. In the ordinary course of cleaning the component parts of its plant, the Village back-washes into Lake Michigan the sludge accumulated in the bottom of its settling basins. This backwash is generally conducted biannually. It is estimated that the discharge amounts to 50 tons of solids and 2,000,000 gallons of water being returned to the Lake each year. Approximately one-half of the solid matter is in reality a concentrated return of particles filtered out of the raw lake water. The other one-half principally consists of alum which is added to the water during the purification process to precipitate out turbidity.

The Village primarily contends that the District exceeded its statutory authority by enacting its Sewage and Waste Control Ordinance. As pointed out by the Village, article VII, section 8, of the Illinois Constitution of 1970 provides that “* * * special districts * * * which exercise limited governmental powers or powers in respect to limited governmental subjects shall have only powers granted by law.” Thus, the District derives its powers exclusively by statute, and has only that authority which is expressly conferred upon it. (People ex rel. Illinois Highway Transportation Co. v. Biggs, 402 Ill. 401.) As stated in Oliver v. Civil Service Commission, 80 Ill.App.2d 329, 334, 224 N.E.2d 671, 674, “The law is clear # * that regulatory agencies have no inherent powers. They are creatures of statute, vested only with those powers specifically conferred upon them by the legislature * * *.” The grant of authority to the District is found in section 4 et seq. of “An Act to create sanitary districts * * *” (Ill. Rev. Stat., ch. 42, par. 323 et seq.). Section 4 provides in material part that:

“The board of trustees has full power to pass all necessary ordinances, orders, rules resolutions and regulations for the proper management and conduct of the business of the board of trustees and the corporation and for carrying into effect the object for which the sanitary district is formed. * * *”

Section 7aa of the same act provides that:

“The sanitary district has the power and authority to prevent the pollution of any waters from which a water supply may be obtained by any city, town or village within the district. * * *” (Ill. Rev. Stat., ch. 42, par. 326aa.)

Section 7bb of the same act provides that:

“The term ‘Pollution means such alteration of the physical, thermal, chemical, biological or radio-active properties of any waters of the State, or such discharge of any contaminant into any waters as will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational; or other legitimate uses, or to livestock, wild animals, birds, fish, or other aquatic life.
# # #
(2) The sanitary district acting through the general superintendent shall study, investigate, and from time to time determine ways and means of removing from the waters within such sanitary district so far as practicable, all pollution, and to determine methods of abating pollution that is detrimental to the public health or to animals, fish or aquatic life, or detrimental to the practicable use of the waters for purposes of recreation, industry, or agriculture. # * *” Ill. Rev. Stat., ch. 42, par. 326bb.

In September of 1969 the District adopted its Sewage and Waste Control Ordinance pursuant to the grant of power in section 423. The last clause of Appendix A to the ordinance provides that “no sewage, industrial wastes or other wastes of any kind may be discharged into the waters of Lake Michigan.” The District’s position is that this backwash discharge violates Appendix A, and, therefore, must be discontinued.

There appears to be no conflict that the Village is in violation of Appendix A. This is expressly admitted by the Village. It also concedes the District’s authority to prevent the discharge of pollutants into Lake Michigan. The Village argues, however, that there is no statute giving the District the express power or even implied authority to prohibit a nonpolluting discharge; and that Appendix A is an unlawful attempt by the District to ban a discharge without regard to its reasonableness, or without a consideration of the public health, safety or welfare. In short, the Village contends that the order to cease and desist must be contingent upon actual proof of pollution.

. Throughout these proceedings, the Village has strenuously and sincerely maintained that its discharge does not pollute the waters of Lake Michigan. At the hearings before both the hearing officer and the Board of Trustees, the Village offered to so prove. It is contended that the refusal of this evidence was improper, and that the limitation of the issue to whether or not the Village violated the ordinance was reversible error. The Village strongly believes that it would be improper to expend substantial public monies to install an alternative system of disposal until a showing is made that its discharge is harmful.

We begin our discussion of the issues with two fundamental and undeniable principles; first, that the police power of the State may be employed to protect the public health (City of West Frankfort v. Fullop, 6 Ill.2d 609, 129 N.E.2d 682), and second, that the State of Illinois, as it may lawfully do, has delegated to the Metropolitan Sanitary District of Greater Chicago the police power to protect the public health with respect to certain waters. More specifically, the District is authorized by statute to prevent the pollution of Lake Michigan and other waters within its jurisdiction. Indeed, this is the undeniable objective of the statute.

We are asked by the Village of Glencoe to hold that the District exceeded its statutory grant of authority by enacting Appendix A, for it is claimed that the Appendix bans a discharge without regard to whether it constitutes pollution. The basic premise underlying this request is unsound. We note that the District did not pass Appendix A on pure conjecture, nor without a keen awareness of its statutory duties. The Ordinance was adopted only after a thorough consideration by the Board of Trustees over a period of 1 year. During that time span three public hearings were' held at which extensive evidence was received on the matter. At the conclusion of all evidence, the Board formed a calculated and informed opinion that Lake Michigan was at a critical stage, and that the discharge of any waste into the lake would seriously impair its suitability for the purposes enumerated in the statúte. Therefore, the Board determined that the discharge into the lake of any waste, regardless of volume or chemical composition, per se pollutes the lake. Thus, we cannot say that Appendix A bans a discharge without regard to" whether it constitutes a pollutant, since the District has determined that the discharge of any waste is per se a pollutant. Accordingly, it was proper at the hearing to limit the issue to whether the Village was in violation of the Ordinance, and it was not error to refuse the Village’s offer of proof that its discharge did not pollute Lake Michigan.

Wide latitude must be given to administrative agencies. Where their discretion is broad, an agency determination may not be overturned because a court may think it unwise or their policy inappropriate. (James v. Cook County Department of Public Aid, 126 Ill.App.2d 75, 261 N.E. 2d 420.) When construing a statute, the court’s principle object is to ascertain and give effect to the intention of the legislature. (Fowler v. Johnson City & Big Muddy Coal & Mining Co., 292 Ill. 440.) We note that in Illinois, the public concern with pollution has been elevated to the level of constitutional dignity. Article XI, section 1, of the Illinois Constitution of 1970 provides that, “The public policy of the State * * * is to provide and maintain a healthful environment for the benefit of this and future generations.” Viewing the statute as a whole, we believe it is clear that the legislature intended to carry through this posture by granting extremely broad powers to the District. We believe it to be equally clear that it is within the District’s statutory power to ban the discharge of any waste, when in its opinion such waste pollutes or is even likely to pollute the waters of the District.

A presumption of validity attaches where an ordinance is passed pursuant to a legislative grant of authority (City of Decatur v. Chasteen, 19 Ill.2d 204), and the courts will not interfere absent a showing that the agency’s action was palpably arbitrary, unreasonable, or capricious. (Richards v. Board of Education, 21 Ill.2d 104.) We conclude that the Ordinance bears a rational relation to a legitimate public interest, and that it was enacted in furtherance of a legislative intent to prevent the pollution of precious water supplies. As stated by the League of Women Voters of Glencoe, amicus curiae, the problem is especially serious because the pollution of Lake Michigan is practically irreversible. Secretary of Interior Udall also noted that, “Delay means death to Lake Michigan.” Finally, as stated in Crowley v. Christensen, 137 U.S. 86, 89:

* * the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will.”

The ordinance applies uniformly to all, and we find that the resulting public benefit greatly outweighs the individual hardship of the Village.

Finally, it is contended by the Village that the District improperly enlarged its statutory authority by redefining the term “industrial waste.” The statute defines “industrial waste” as:

“9 * * solids, liquids, or gaseous wastes resulting from any industrial or manufacturing operation or process, or from the development of any natural resources.” (Ill. Rev. Stat, ch. 42, par. 326bb.) “* * * all solid, liquid or gaseous waste resulting from any industrial, manufacturing, trade of business process or from the development, recovery or processing of natural resources.”

The ordinance defines “industrial waste” as:

It is admitted by the Village that its discharge constitutes an “industrial waste” under the Ordinance, since it is a waste resulting from the processing of a natural resource. But it is argued that it is not an “industrial waste” under the statute. Therefore, it is contended that the discharge is permissible. This argument lacks serious merit.

In addition to “industrial wastes” the statute grants the District the power to prevent “sewage wastes” and “other wastes.” “Other wastes” is defined as follows:

“* # # decayed wood, sawdust, shavings, bark, lime, refuse, ashes, garbage, offal, oil, tar, chemicals and all other substances except sewage and industrial waste.” (Ill. Rev. Stat, ch. 42, par. 326 bb.) (Emphasis added.)

Given this full range of responsibility, we fail to see how the District has enlarged its statutory power. Even if the Village’s discharge is not an “industrial waste” under the statute, clearly it is an “other waste” over which the District has authority to act.

For the reasons set forth, the judgment of the circuit court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Longstreet, Defendant-Appellant.
    (No. 57950;
    First District (5th Division)
    October 25, 1974.

      James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Thomas D. Rafter, Perry L. Fuller, Dennis J. Horan, and Michael J. Morrissey, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendant.was charged with the offense of armed robbery. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2.) Following a jury trial he was found guilty and sentenced to a term of from 5 to 10 years. On appeal he contends that (1) he was not proven guilty beyond a reasonable doubt; (2) he was prejudiced by the testimony of a police investigator concerning his prior contacts with the police; (3) he was prejudiced by the introduction into evidence of certain “mug shots” and of weapons unrelated to the offense with which he was charged; (4) he was denied a fair trial due to the failure of the State to fully comply with a discovery order; (5) he was prejudiced due to the fact that the court gave an “Allen” charge to the jury; and (6) his sentence is excessive.

At trial Henry Liese testified for the State that at 2 P.M., on September 6, 1970, he arrived at an apartment building which he owned at 3548 West Congress Parkway in Chicago. He parked his car in the alley beside the building and proceeded to the first-floor rear apartment of Mrs. Helen Anderson to collect rent. Mrs. Anderson was not home. A 13-year-old girl answered the door and then left to get the rent money. She returned approximately 15 minutes later and gave him $90 in cash for rent and utilities. While writing a receipt he heard the hood of his car go down. He returned to his car and put his key in the ignition, but it would not start. “In less than a minute” someone was alongside him. This individual opened the car door and said, “I’ve got a gun, give me your money, all of it.” The man pointed a snub-nose gun toward his left side. Liese gave the man $154. He pointed toward the porch and told the robber, “This is all of it, ask her.” He did not see anyone on the porch but he “knew they were there.” He observed the man’s face and stature for a “good minute” under excellent lighting conditions. The sun was shining. The man was a “good six feet” tall and wore a khaki T-shirt and blue trousers. After being robbed, he called the police. A couple of squad cars arrived. He accompanied the police officers and was shown a short man but stated that this was not the man who had robbed him. Several days later Officer Munyon, a police investigator, came to his home and showed him five or six photos. He picked out one of defendant. On September 15, 1970, he viewed a lineup of six or seven men, at which time he again identified defendant.

On cross-examination Liese testified that he had never before seen Alfreda Leach, the girl who had given him the rent money. He did not tell police officers that the robber had called out to her. He described the robber to police as being in his twenties, about 6 feet 5 inches, with natural hair and wearing blue trousers and a khaki shirt. The robber carried a snub-nose steel .32-caliber revolver. He did not tell police whether or not the robber wore a mustache.

Officer Thomas Munyon of the Chicago Police Department testified for the State that on September 8, 1970, he was investigating the armed robbery of Liese. He went to the apartment house at 3548 West Congress and interviewed Helen Anderson. She told him that she had not been at home on September 6 and had no knowledge of the robbery. He then searched for other witnesses to the crime. Two children, about 6 or 7 years of age, directed him to go to a building about half a block east of the scene of the crime. They were Mrs. Anderson’s children; however, he could not remember their first names. He proceeded to the building to which the children had pointed and spoke with Alfreda Leach. She told him that she had given Liese the rent money but did not see the robbery. She told him that there were no male members of her family living in the building. He went to the front of the building to obtain the address. It was 3527 West Van Burén. He found the name “Leach” on the mailbox and also that of Harold Longstreet. He then went to police files and “got the name of a Harold Longstreet, male Negro, date of birth, 1950, six feet three, a hundred sixty-five pounds, dark complexion.” He obtained a photo of defendant, included it with six other photos of “previous offenders of robberies” and showed them to Liese. Liese identified defendant. Munyon then secured an arrest warrant for defendant. He proceeded to the Leach apartment accompanied by two other officers. Upon being admitted to the apartment, they found defendant asleep in bed. There was a metal box next to the head of the bed. Munyon opened the box and found three pistols in it. Defendant, when he awoke, put on a khaki shirt and blue pants and accompanied the officers to the police station. At the station Liese was shown the weapons that had been seized and identified a snub-nose .38-caliber revolver as the gun that had been used in the robbery. Liese then viewed a lineup and identified defendant. On cross-examination Munyon testified that defendant continually denied any participation in the robbery.

Chicago Police Officer Roger Sielinski testified for the State that on September 6, 1970, he received a robbery call to go to 3548 West Congress Parkway. When he arrived, he was given the following description of the robber: “[A] male, Negro, approximately twenty two years old, six feet tall, 165 pounds, black hair, brown eyes, medium complexion, khaki shirt and blue pants.” Other police officers brought an individual to the presence of Liese. He stated that the individual was not the offender, and the man was released. On cross-examination Sielinski testified that Liese told him that a blue-steel revolver was used. Liese told him that the robber called to a woman on the porch named Alfreda and asked her “if this was all the money that he had.” His report did not indicate whether joy not Liese told him that the robber had a mustache.

Defendant testified on his own behalf that on September 6, 1970, he lived at 3527 West Van Burén. That morning he awoke at 9:30. His mother, Callie Lee Leach, his sisters, Alfreda Leach and Peggy Joe Leach, his brother, Frank Sam Leach, his cousin, James Patt, and Part’s fiancee, Helen Anderson, were present. He put on blue levis and a red T-shirt and before 11 o’clock he went to the garage of Walter Patrick, located in the 3300 block of Flournoy. He went alone. Patrick showed him how to work on an automobile’s transmission, and he then remained there until approximately 7 P.M. When he returned home, the same people were still at his apartment. The box in which the pistols were found did not belong to him. The box had a lock on it. On September 6 he wore a mustache. He did not hold up Liese.

Walter Patrick testified for the defense that on September 6 defendant came to his place at approximately noon in order to repair the drive shaft or transmission of a car that was in his garage. Defendant remained there until at least 7 P.M.

Melvin Abercromby testified for the defense that the box in which the guns were found had been pawned to him. He placed the box in the apartment in which defendant was residing. The box had been locked, and he did not have a key. On September 6 the police showed him to a man who was sitting in a squad car, but the man told the police that Abercromby was not the one he was looking for.

Alfreda Leach testified for the defense that she lives at 3539 West Van Burén. On September 6, 1970, she paid the rent to Liese. She did not see anyone rob him nor did she hear anyone call, “Alfreda, does he have any more money?” On cross-examination she testified that defendant did not leave home to go to Mr. Patrick’s garage until after she had returned from paying the rent.

Opinion

Defendant contends that the State failed to prove him guilty beyond a reasonable doubt. He maintains that Henry Liese contradicted himself on three “significant” matters in that he (1) failed to notice whether or not the robber wore a mustache, (2) did not testify at trial that the robber called out to Alfreda Leach despite earlier statements to the police to that effect, and (3) was mistaken in his description of defendant’s complexion.

The rule is well established that “[i]t is within the province of the jury to judge the credibility of witnesses, weigh the testimony and determine matters of fact. The determination of the jury will not be disturbed unless the evidence is so unsatisfactory as to justify a reasonable doubt of guilt.” (People v. Benedik, 56 Ill.2d 306, 310, 307 N.E.2d 382; People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595; People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840.) “The testimony of a single witness, if it is positive and the witness credible, is sufficient to convict even though it is contradicted by the accused.” (People v. Hampton, 44 Ill.2d 41, 45, 253 N.E.2d 385.) In the instant case Liese was able to observe the individual who was robbing him for a “good minute” under excellent lighting conditions. He described the robber as being a Negro about 22 years of age, over 6 feet in height, 165 pounds in weight, and carrying a .32-caliber blue steel snub-nose revolver. Police records indicate that defendant is a black male who stands 6 feet 3 inches and weights 165 pounds. On September 6, 1970, he was 20 years old. At the time of his arrest a snub-nose .38-caliber revolver was seized. Liese positively identified defendant on three occasions, first when he was shown a group of photographs by a police investigator, later at a lineup, and once again in court. He identified the .38-caliber revolver as the weapon used in the robbery. Key portions of his testimony were corroborated by that of Officers Munyon and Sielinski. Contrary to defendant’s contention that Liese was an unreliable witness, we find that his testimony failed in only minor respects. We therefore hold that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant next contends that prejudicial error resulted from the testimony of Officer Munyon concerning the investigatory procedures which led to his arrest. Specifically, defendant points to Munyon’s statements concerning his listing in the police “alpha” file and his photograph being included in a group of those of “prior offenders.” He argues that this testimony contains improper references to his prior unrelated criminal acts.

During the course of his testimony Munyon stated that he found defendant’s name on the mailbox at the Leach residence. The State’s attorney then asked him:

“Q. Okay, what did you do next?
A: I went to the alpha file.
Q: Before we go into that, briefly describe to the ladies and gentlemen on the Jury what the alpha files are.
A: It is an alphabetical listing of any persons who has [sic] had contact with the police department.
Mr. Yonan [defense counsel]: Judge, I am going to object to this
The Witness: A. (continuing) — either victim or—
Mr. Yonan: Judge, I object to this.
The Court: Sustained.”

Munyon did not testify further on this matter. It is clear, from a review of this colloquy, that Munyon’s testimony did not refer to the commission of prior unrelated criminal acts by defendant and therefore he suffered no prejudice.

Munyon also testified that the photographs he showed Liese were of “people that my unit has arrested for robberies or unlawful use of weapons, carrying a gun in the street.” Defendant claims that the trial court’s failure to sustain his objection to this testimony constitutes prejudicial error.

“Although evidence of other offenses is ordinarily inadmissible, a recognized exception to the general rule exists where the evidence tends to aid in the identification of the accused as the person who committed the particular crime charged.” (People v. Lewis, 30 Ill.2d 617, 621, 198 N.E.2d 812.) Thus, even though “a prior criminal record may be inferred from the use of police photographs, their admission into evidence or testimony in reference thereto, is not error per se.” (People v. Coleman, 17 Ill.App.3d 421, 431, 308 N.E.2d 364.) We believe that Munyon’s brief mention of the source of the photographs directly related to the issue of the identification of defendant and, consequently, fell within the rule enunciated in Leicis. The State made no attempt during the course of trial to elicit further testimony concerning defendant’s prior unrelated criminal activities nor did the assistant State’s attorneys mention these matters during closing argument. In addition, we note that the court ordered that the police numbers be trimmed from the photos before they were introduced into evidence. Therefore, Mun-yon’s testimony cannot be considered as prejudicial error.

Defendant further contends that it was error to introduce into evidence this group of 11 mug shots since Munyon testified that he had shown only 6 photos to the complaining witness. Defendant’s specific complaint is that the sole purpose of the State in introducing these photos was to bring attention to the fact that he had a police record.

In general, police mug shots are not held to be prejudicial as constituting evidence of other offenses where they are relevant to the issue of identity. (People v. Maffioli 406 Ill. 315, 94 N.E.2d 191; People v. Smith, 20 Ill.App.3d 756, 314 N.E 2d 543; People v. Coleman; People v. Bleimehl, 9 Ill.App.3d 273, 292 N.E .2d 60.) Although we view with disfavor the State’s introduction of some photos which were not shown to Liese when he made his initial identification of defendant, we believe that this rule is clearly applicable in the instant case. The capability of Liese to identify defendant was at issue. It is undisputed that the photos actually shown to the complaining witness had been drawn from the group of 11 ultimately introduced into evidence. Moreover, as noted above, the trial court attempted to disguise as much as possible the fact that the photos in question were taken from police files. Their introduction did not unfairly prejudice defendant.

Liese testified that a single weapon, a snub-nose blue-steel small-bore revolver, was used in the robbery. Defendant claims that the introduction of an automatic and a large-bore revolver seized at the time of his arrest, in addition to the gun identified by Liese, constitutes prejudicial error.

It has long been the rule that “even though no claim is made that the accused used [the particular] weapon in committing the particular crime, the weapon may be the subject of testimony concerning the details of the arrest and also be admitted into evidence. People v. Lenhardt, 340 Ill. 538; People v. Durkin, 330 Ill. 394; People v. Dale, 355 Ill. 330. Cf. People v. Smith, 413 Ill. 218.” (Emphasis supplied.) (People v. Jackson, 9 Ill.2d 484, 492, 138 N.E.2d 528, 532.) Thus, for example, in People v. Moore, 42 Ill.2d 73, 246 N.E.2d 299, the supreme court rejected a claim similar to that raised by defendant where a revolver seized at the time of the accused’s arrest was shown to a jury even though no testimony linked it to the commission of the crime for which he was being tried, and in People v. Trice, 127 Ill.App.2d 310, 262 N.E.2d 276, a starter’s pistol found in the possession of the defendant when he was arrested was ruled to have been properly placed in evidence despite the fact that it was never alleged that he had used the gun. The record before us reveals that Officer Munyon discovered the weapons in question in a metal box located at the head of defendant’s bed during the course of a search incident to his arrest, and therefore we find that it was not error to allow them to be introduced into evidence.

Defendant next claims that the State’s failure to inform him of the identity of occurrence witnesses as requested in his discovery motion and subject to the court’s compliance order denied him his right to a fair trial. In addition, he asserts that the State compounded its error by including prejudicial comments with regard to these witnesses in its closing argument. Initially it is defendant’s contention that although his discovery motion requested a list of occurrence witnesses who would not be called by the prosecution, the State failed to supply him with the names of two small children who had been interviewed by Officer Munyon.

We have recently held that “there is no * * * constitutional requirement that the prosecution make a complete and accurate accounting of all police investigatory work. (Moore v. Illinois, 408 U.S. 786.) * * # [F]or prejudice to lie, the evidence must be both material and favorable to the defendant. This is true even if evidence is suppressed over defendant’s motion for production.” (People v. Bracy, 14 Ill.App.3d 495, 502, 302 N.E.2d 747.) There is here no allegation that the State failed to disclose evidence material to his case on the issues of criminal culpability or punishment. Moreover, our Supreme Court Rules do not require that the names of occurrence witnesses be made known to a defendant. Rather, they grant the right to a defendant only to “the names and last known addresses of persons whom the State intends to call as witnesses.” (Supreme Court Rule 412 (a) (i); Ill. Rev. Stat. 1971, ch. 110A, par. 412(a) (i).) In fact, contrary to defendant’s assertion, there is no indication in the record that these children were occurrence witnesses. Before the grand jury, Munyon merely testified that “I have obtained the description [of defendant] from two kids.” At trial he testified only to the fact that when he interviewed Helen Anderson’s 6- or 7-year-old children about the robbery, they pointed toward the Leach residence. Since their mother was apparently a friend of defendant and his family, it seems likely that the children would know of defendant’s activities even though they may not have witnessed the crime. Although defendant claims that the State violated the prescriptions of Giglio v. United States, 405 U.S. 150, and Supreme Court Rule 412(f) (Ill. Rev. Stat. 1971, ch. 110A, par. 412(f) ), he admits that the record reveals that Munyon did not make a note of the children’s names while he was conducting his field investigation nor could he remember them at trial. Clearly, the State is not obliged to reveal to a defendant information its investigators have not compiled. Defendant has argued that the failure of the State to disclose the names and address of the Anderson children violated the trial court’s compliance order. The court, however, ruled that the State acted in accordance with its orders and, there being no violation of a constitutional or statutory requirement, we find no merit in his claim.

Defendant also contends that he was prejudiced by the State’s closing argument. We note that in his closing argument defense counsel commented on the failure of the State to call the two Anderson children to testify. The assistant State’s Attorney stated in reply that “with regard to little children which counsel has brought up in this case, counsel is further well aware that six and seven year old children cannot be witnesses in court by law.” We are, of course, aware that the rule, properly stated, is that a child is not absolutely precluded from testifying but rather is presumed incompetent to testify until the trial judge determines his competency. (People v. Ballinger, 36 Ill.2d 620, 225 N.E.2d 10.) However, we believe that coming in response to defense counsel’s closing argument, and in view of the weight of the State’s case, this slight misstatement of the rule did not prejudice defendant. Cf. People v. Bracy.

After the jury deliberated over three hours, the court, on its own motion, gave the following instruction:

“Ladies and gentlemen of the Jury, in a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusion of others, yet you should examine the questions submitted with proper regard and deference for the opinion of each other and you should listen to each other, listen to each other’s opinions with a disposition to be convinced. It is your duty to decide the case if you can conscientiously do so. If you should fail to agree on a verdict, this must be retried and any further jury must be selected in the very same manner and from the very same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it tiran you or that the case can be tried any better or more exhaustingly than it has been in this Courtroom or that more or clearer evidence could ever be produced on behalf of either side.”

Defendant, calling this instruction an “Allen” charge, contends that it placed “unfair pressure on those jurors in the minority and that its effect was to coerce a hung jury into reaching a verdict.”

In People v. Hairston, 10 Ill.App.3d 678, 687, 294 N.E.2d 748, it was noted that “ft]he usual criticism of an ‘Allen’ charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154), centers on language which urges those in the minority on the jury to re-evaluate their positions, giving consideration to the fact that the majority of the jury heard the same evidence, yet took a different position.” The instruction given in the instant case does not contain such language, and therefore it was not improper in that respect. Moreover, in People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601, our supreme court was confronted with an instruction containing language almost identical to that in the case before us, and the same issue of prejudice was raised. While the court did not encourage the use of such an instruction, it concluded that its giving had not prejudiced the accused. We believe that under the facts of the instant case defendant was not prejudiced by the giving of the challenged instruction.

Defendant’s final contention is that his sentence of from 5 to 10 years is excessive. Although the term falls within the limits prescribed by the Unified Code of Corrections (Ill. Rev. Stat. 1973, eh. 38, par. 1005 — 8—1), he urges that we exercise our discretionary power to reduce his sentence. With regard to sentencing, the trial judge, who has the opportunity during the course of the trial and the hearing in aggravation and mitigation to make a sound determination as to the punishment to be imposed, occupies a position superior to that of an appellate tribunal. Therefore, we will not disturb a sentence imposed by the trial judge unless it constitutes a great departure from the fundamental law and its spirit and purpose, or is out of proportion to the nature of the offense. (People v. Schmidt, 10 Ill.2d 221, 139 N.E.2d 726; People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673; People v. Collins, 21 Ill.App.3d 800, 315 N.E.2d 916.) These principles have not been violated in the case at bar.

For the foregoing reasons the judgment entered below is affirmed.

Affirmed.

SULLIVAN, P. J., and BARRETT, J., concur.

       Supreme Court Rule 412(f) provides that:
      “The State should ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged."


author: PER CURIAM.

text:
    George S. Landfield, Plaintiff-Appellant, v. Michael J. Howlett, Secretary of State, Defendant-Appellee.
    (No. 59564;
    First District (5th Division)
    October 25, 1974.

      George S. Landfield, pro se.

    William J. Scott, Attorney General, of Chicago (Jerry E. Felsenthal, Assistant Attorney General, of counsel), for appellee.
   PER CURIAM.