text:
    Elmer J. Meyer et al., Plaintiffs-Appellees, v. Lizetta M. C. Marshall et al., Defendants-Appellants.
    (No. 73-169;
    Fifth District
    August 30, 1974.
    Rau and Frierdich, of Columbia (C. Glennon Rau and Michael V. Frierdich, of counsel), for appellants.
    Tom D. Adams and Floyd E. Crowder, both of Columbia, for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendants appeal from a permanent injunction issued by the circuit court of Monroe County, preventing defendant from building a new residence pursuant to a building permit issued by the city of Columbia, Illinois. Plaintiffs contended that the building permit violated the zoning ordinance of the city of Columbia and initially obtained a temporary injunction against construction of the house. The circuit court later denied a defense motion to dissolve the temporary injunction and instead issued a permanent injunction and assessed costs, including attorney’s fees, against the defendants. We reverse.

Defendant Lizetta Marshall owns property and a residence located on Bottom Road in Columbia, Illinois. The plaintiffs, Elmer and Mathilde Meyer and Judith Crowder, own property in Columbia, adjacent to that of defendant Marshall, separated by a roadway and utility easement granted to plaintiffs by defendant. The Meyers’ property lies on Bottom Road with the Crowder property located behind it;- Both parcels have access to Bottom Road by way of the easement. All of the property involved in this case is zoned R-6 residential.

Early ip January of 1973, defendant Marshall decided to construct a new home on a portion of the property abutting plaintiffs’ easement. She hired defendant Schueler Brothers, Inc., to plan and construct the building. The plans called for the house to face east towards defendant Marshall’s old house with the rear of the structure facing the properties owned by the plaintiffs. The Columbia Zoning Ordinance provides that in an R-6 area only single-family residences are permitted and each lot is required to have a minimum area of 6500 square feet and a minimum width of 50 feet (Columbia Zoning Ordinance, art. VI, par. 6(c)(1), at 28). At the request of the person in charge of issuing building permits, defendant employed a registered Illinois land surveyor to prepare a plat of the entire. Marshall property and a separate legal description of the parcel upon which defendant intended to build, so that both parcels would satisfy the minimum-lot-size requirements. The parcel upon which the new house was to be built measured 63 feet X 154 feet and the remaining parcel, 93 feet X 154 feet. Both parcels met the area requirements for an R-6 zone. Thus, on February 10, 1973, a building permit was issued to defendants by the city of Columbia.

Soon after the permit was issued, plaintiffs commenced suit pursuant to section 11 — 13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 13—15). The complaint alleged that construction of defendant’s house would violate the Columbia Zoning Ordinance (art. IV, par.'l(c)(4), at 17, and art. VI, par. 6(D), at 28), and sought a temporary injunction on grounds that permitting the construction would disturb their peace, quiet, health and comfort and deprive them of the full use and enjoyment of their land. The temporary injunction was granted on the same day the complaint was filed, February 27, 1973, without notice to defendant and without requiring plaintiffs to post bond. The city of Columbia was later aUowed to intervene over defendants’ objection, and after a trial on aU the issues, the trial court permanently enjoined construction of the new house and assessed court costs including attorney’s fees against the defendants.

The defendants-appeUants have raised three issues on appeal: First, that the buffding permit was valid because aU applicable provisions of the Columbia Zoning Ordinance were complied with; second, that the intervention of the city of Columbia was improper; finally, that the injunction should not have been granted and therefore plaintiffs’ attorney’s fees should not have been assessed against the defendants; rather, costs including attorney’s fees should have been assessed against the plaintiffs.

At the outset, we take judicial notice that plaintiff Judith Crowder has by affidavit sworn that following the issuance of the permanent injunction, defendant Lizetta Marshall conveyed to her sister the parcel upon which she had proposed to construct the new house and subsequently a new building permit was issued by the city of Columbia and another house was constructed on the land. Thus, the issues concerning the validity of the original building permit, the city of Columbia’s intervention, and the propriety of the issuance of the temporary and permanent injunctions have all been rendered moot such that no effective relief can be granted by the court regarding these issues. Harney v. Cahill, 57 Ill.App.2d 1, 206 N.E.2d 500.

One issue still remains — the propriety of assessing court costs including attorney’s fees against defendants. Ordinarily where the substantive issues involved in the trial court no longer exist, an appellate court will not review the case to determine a right to or liability for costs. (La Salle National Bank v. City of Chicago, 3 Ill.2d 375, 121 N.E.2d 486; Case v. Rewerts, 15 Ill.App.2d 1, 145 N.E.2d 251; Collins v. Barry, 11 Ill.App.2d 119, 136 N.E.2d 597.) The defendants argue notwithstanding the above rule, that if the issuance of the permanent injunction was not warranted by the facts, our refusal to review the action of the trial court would leave defendants wrongfully liable and without a remedy. It should also be noted that while plaintiffs agree that most of the issues raised by this appeal have become moot, they concede that the question of the assessment of costs against the defendants remains unresolved. Under the circumstances, justice requires that we decide the issue. Furthermore, although most of the issues have become moot, an appellate court has jurisdiction to review the assessment of costs including attorney’s fees against a party pursuant to statutory authority when there exists a distinct possibility that the trial court erred in exercising its discretion in a matter of substantial public interest. (Johnson v. Board of Education, 79 Ill.App.2d 22, 223 N.E.2d 434; Voisard v. County of Lake, 27 Ill.App.2d 365, 169 N.E.2d 805.) It appears to us that the language of the Columbia Zoning Ordinance provisions is amenable to several interpretations, as occurred in the case at bar and thus there exists a substantial public interest in a positive ruling on the meaning of the sections which were involved in this dispute. Other jurisdictions have likewise held that an appellate court may review the decision of a lower court for pur-poses of deciding the issue of costs despite the fact that the principal issues have been rendered moot. State ex rel. Treat v. Hammel, 134 Wis. 61, 114 N.W. 97; Morrison v. Hess (Mo. 1921), 231 S.W. 997; Coker v. Richey, 104 Ore. 14, 204 P. 947.

Turning now to the merits of the case, the crucial issues are whether or not the defendant’s building plans violated article IV, paragraph 1(C) (4), and article VI, paragraph 6(D), of the Columbia Zoning Ordinance in that more than one building would be located on one lot and that the proposed lot would meet the minimum size requirements for front, side and rear yards. We believe that the trial court erred in its interpretation of the above provisions by focusing its attention on the way in which the residence was to be facing for a determination of the front, side and rear yards rather than giving effect to the plain meaning of the words of the ordinance. In construing statutes and ordinances, courts may not read into them exceptions the legislature did not see fit to make, or, by forced or subtle constructions, alter the plain meaning of the words employed. (People ex rel. Pauling v. Misevic, 32 Ill.2d 11, 203 N.E.2d 393.) Where statutory words are plain and legislative intent manifest, courts are required to give effect to such intention. (People ex rel. Petty v. Community High School District No. 128, 50 Ill.App.2d 445, 200 N.E. 609.) Furthermore, zoning ordinances are to be strictly construed in favor of the right of the property owner to the unrestricted use of his property. Herrington v. County of Peoria, 11 Ill.App.3d 7, 295 N.E.2d 729; City of Rockford v. Eisenstein, 63 Ill.App.2d 128, 211 N.E.2d 130.

The plain meaning of the ordinance is best derived by examining the provisions themselves. Article IV, paragraph 1(C)(4), page 17, of the ordinance states that:

“Every building hereafter erected or structurally altered shall be located on a lot as herein defined and in no case shall there be more than one (1) main building on one (1) lot # #

And in article IV, paragraph 1(G)(5), page 17, it states that:

“No parcel of land described by metes and bounds or any lot shall hereafter be created which doe not conform and meet the requirements of this ordinance.”

“Lot” is defined in article II, paragraph 1(B) (61), page 9, as:

“A parcel, tract, or area of land accessible by means of a street or place.”

The definition goes on to state that:

“It may be a single parcel separately described in a deed or plat which is recorded in the office of the county recorder, or it may include parts of or a combination of such parcels, when adjacent to one another and used as one.” (Emphasis added.)

Since the defendant lives in an area zoned R-6 residential, the ordinance requires at article IV, paragraph 6(C)(1) that:

“Every one-family detached dwelling hereafter erected shall be on a lot having an area of not less than sixty-five hundred (6,500) square feet, and a width at the established building line of not less than fifty (50) feet.”

Therefore, for a parcel of land to be a “lot”, it must be accessible by a street or place and have an area of 6500 square feet. The parcel upon which defendant wanted to build met these “lot” requirements. It had access to Bottom Avenue and the registered land surveyors description of the parcel measured 63 feet X 154 feet, or 9702 square feet.

Contrary to the plaintiffs’ contention, there is no requirement in the Columbia Zoning Ordinance that for a lot to be created, a deed or plat of the area be recorded. Plaintiffs also argue that the Plat Act (111. Rev. Stat. 1971, ch. 109, pars. 1 — 13) requires that a survey be made and recorded whenever an owner of land subdivides it. The Act, however, does not apply and no plat is required where the division is of lots or blocks of less than 1 acre in any recorded subdivision which does not involve any new streets or easements of access. In this case, the defendant’s parcel was less than 1 acre in size and its division did not involve any new street or easement of access.

Having thus satisfied the minimum lot-size requirement in an R-6 residential district, the defendant also had to comply with the yard-area requirements. In order to determine what are the front, side and rear yards, the ordinance first requires a determination of the “frontage” and “front lot line.” Article II, paragraph 1(B) (47), page 7, of the ordinance defines frontage as:

“All the property abutting on one (1) side of a street or place between two intersecting streets or places (crossing or terminat-

Here the “frontage” was all the property abutting Bottom Avenue and the easement roadway. According to article II, paragraph 1(B) (62), page 9, a “comer lot” is a ‘lot at the junction of and having frontage on two (2) or more intersecting streets”; therefore the Marshall lot was a comer lot. The ordinance defines tire “front lot line” of a “comer lot” as the “line separating the narrowest frontage of the lot from the street” (art. II, par. 1(B) (66), p. 10). In the case at bar, the narrowest frontage was that abutting Bottom Avenue, 63 feet, the frontage abutting the easement having a width of 154 feet. Article II, paragraph 1(B) (90), page 12, defines “front yard” as “a yard extending across the full width of the lot * * * the depth of which is the least distance between the front line and the building line.” Thus the “front yard” of the Marshall “lot” was the area lying between Bottom Avenue and the side of the proposed building. Pursuant to article II, paragraph 1(B) (91) and (92), page 12, of the ordinance, the “rear yard” is the area lying between the side of the principal building and tire rear lot line, and the “side yards” are those lying between tire principal building and the side lot lines. The yard-size requirements in an R-6 residential district are set out in article VI, paragraph 6(D), page 28, of the ordinance, as follows:

“No building or structure shall be erected or enlarged unless the following yards are provided and maintained in connection with such building, structure, or enlargement:
1. Front Yard. Each lot upon which a dwelling is constructed shall have a front yard of not less than thirty (30) feet.
2. Side Yard. On each lot upon which a dwelling is constructed, there shall be a side yard on each side of not less than five (5) feet, or ten (10) percent of the width of the lot, whichever amount is larger, but the side yard need not exceed fifteen (15) feet in width.
3. Rear Yard. Every lot or parcel of land upon which a building is constructed shall have a rear yard of not less than thirty (30) feet, or twenty (20) percent of the depth of the lot, whichever amount is larger, but it need not exceed forty-five (45) feet.”

The evidence introduced at the trial demonstrated that the yard area requirements were met. The “front yard” was 30 feet, the side yards were 8Vz feet and 36Vz feet on the east and west, respectively, and the depth of the rear yard was 60 feet.

In summary, the defendant’s plans to build a new home on a portion of her property fully satisfied all of the requirements of the Columbia Zoning Ordinance. The issuance of the injunction was against the manifest weight of the evidence and therefore costs including attorney’s fees should not have been assessed against the defendants.

The sole remaining issue for our consideration is whether as defendants request, costs including attorney’s fees should be assessed against the plaintiffs. The defendants argue that since the plaintiffs brought their action pursuant to section 11 — 13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 13—15) which allows a successful plaintiff to recover attorney’s fees and since the Costs Act (Ill. Rev. Stat. 1971, ch. 33, par. 8) would have permitted the defendants to recover like costs if they had been successful at trial, they were entitled to recover costs including attorney’s fees against the plaintiffs. But for the error of the trial court in interpreting the Columbia Zoning Ordinance, judgment would have been for defendants. Therefore, we hold that the defendants should be allowed to recover costs, including attorney’s fees against fire plaintiffs.

The judgment of the trial court is reversed and this case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

CREBS and CARTER, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

license: Public Domain

text:
    Clarence Moehrs et al., Plaintiffs-Appellants, v. Isabelle M. Moehrs et al., Defendants-Appellees.
    (No. 73-388;
    Fifth District
    August 29, 1974.
    Lindauer & Lindauer, of Belleville (Randall G. Schneider, of counsel), for appellants.

      Crowder & Associates, Ltd., of Columbia, for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

This case concerns a will provision granting a remainder interest in land to the testator’s son providing that the son pay the value of such land, less the cost of any liens thereon, to the other two children of the testator as named in the will. The issue is whether the son’s interest was vested and therefore devisable by him. to his wife. We affirm.

The will of August P. Moehrs devised to his wife, Laura A. Moehrs, a life estate in his 80-acre farm in Monroe County with power to mortgage it in order to support herself. The will’s third paragraph reads:

“After the death of my wife Laura A. Moehrs the said real estate so devised and bequeathed to her for and during her natural life, consisting of my farm of eighty acres and on which I have placed a value of NINE THOUSAND DOLLARS ($9000.00), I give, devise and bequeath to my son Arthur J. Moehrs, Provided, — first —that all debts and expenses, if any, which may be incurred against the above said real estate, before the decease of my wife, (to create a hen on said premises) first be deducted from the NINE THOUSAND DOLLAR value placed by me upon said Eighty Acre Farm, That he the said Arthur J. Moehrs shall pay in cash, if so desired within one year after the death of my wife without interest, the sum of the equivalent of two-thirds (%) of the distributive balance of the value of Nine Thousand Dollars ($9000.00) placed upon said 80 acres by me after all debts and expenses, if any, be deducted. Namely — One Third to my son Clarence A. Moehrs, and One Third to my daughter Mrs. Adelle Hartman.”

Laura Moehrs was afterwards declared incompetent and a conservator was appointed for her. Her conservator mortgaged the farm for $8,000 to provide for her support.

Arthur Moehrs predeceased his mother Laura by a year, devising his estate to his widow, Isabella. Within 4 months of Lama Moehrs’ death, Isabella tendered $9000 to the conservator for the 80-acre farm. The conservator filed an account and report, and asked the court that he be allowed to transfer the property to Isabella. Clarence Moehrs and Adelle Hartman, children of August Moehrs and named beneficiaries of cash legacies in the will, moved that the conservator’s request be denied on the grounds that Isabella had no interest in the farm. The court denied this motion and ordered the farm to be transferred to Isabella. Plaintiffs bring the present action for construction of the will of August Moehts and for partition of the farm among his heirs.

The appellants argue that the provision in the will for their benefit from the farm was intended by the testator to operate as a condition to the vesting of Arthurs interest in the farm. Presumably, then, since the “condition” was never fulfilled by Arthur, title in the farm could not vest in Isabella as devisee of Arthurs estate. Thus, they argue, the land must pass by intestacy. Appellants assert that this intent is reflected in the will’s words: “That he the said Arthur Moehrs shall pay * * as well as the overall desire of the testator to primarily benefit his children.

The law clearly supports the conclusion that such a provision directing the payment of a legacy is not a condition subsequent or precedent but merely a charge upon the land enforceable at equity. There appears no suggestion within the will that the consequences of Arthur’s non-payment of the legacies would be a failure of the land to vest in him. In fact, the words “if so desired” in the third paragraph indicate a contrary intent. The devise of the remainder to Arthur occurs several lines earlier in this paragraph of the will and is there absolute in its terms, indicating that no conditions attach to the vesting of the interest. Spangler v. Newman, 239 Ill. 616, 88 N.E. 202; Daly v. Wilkie, 111 Ill. 382.

The law has clearly followed this interpretation in similar situations. In Spangler, the will provided: “‘I hereby give, devise and bequeath unto my son Selden J. Newman the following described real estate, to-wit, [premises described] on the condition that he pay to my children Jerome B. Newman, Anna W. Newman, and Nelden A. Newman, the sum of $3825 to each one of said children within one year after my death, # # a >" (239 Ill. at 617-618.) The supreme court held that this provision vested title to the land in Selden and that the required payments were merely charges upon the land.

In Parsons v. Millar, 189 Ill. 107, 109, 59 N.E. 606, the testator provided: “I give and bequeath to my son William E. Millar the following described land, to-wit: [land described] provided that my son William E. Millar pay, as before specified, to my daughter Hannah Vause, within two years after my death, the sum of $1000 * # All language following “provided” was held to have created only a lien, or charge upon the land and that title vested in the devisee.

In the present case the testator clearly intended that the land title vest in his son Arthur upon the testator’s death subject to the life estate and right to mortgage in Laura. The provision that the other children were to receive cash benefit from the land does not indicate an intent to condition the vesting of interest in Arthur. Therefore the remainder interest vested in Isabella as of Arthur’s death.

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


text:
    Illinois News Broadcasters Association et al., Plaintiffs-Appellees, v. The City of Springfield, Defendant-Appellant—(Lowell Turley et al., Separate Defendants-Appellants.)
    (No. 73-140;
    Fifth District
    May 16, 1974.

      Rehearing denied September 26, 1974.

    Howarth & Howarth, of Springfield (Nelson Howarth, John E. Howarth, and David N. Howarth, of counsel), for appellants Turley and Bonds.
    D. Bradley Blodgett, Corporation Counsel, of Springfield, for appellant City of Springfield.
    Longrigan, Potter & Billington, of Springfield, for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendants appeal from an order of the Circuit Court of Madison County which found them in violation of the Illinois open meetings law (Ill. Rev. Stat. 1971, ch. 102, par. 41 et seq.).

On March 13, 1972, the Springfield Human Relations Commission, an advisory body to the City of Springfield, held a closed meeting. The purpose of the meeting was to discuss whether the Commission should recommend to the mayor (1) retention of its executive director, and (2) salary increases for the Commissions four paid positions. The Commission failed to give any notice to the public or the public information media that it was holding this meeting. Media representatives who learned of the meeting were refused admission on the grounds that the meeting’s purpose was to discuss personnel. Minutes of this closed meeting revealed that 16 of the 25 Commission members were present and constituted a quorum to carry on business. In addition, some of the Commission’s salaried staff were present, presumably because the Commission’s order of business that evening concerned them personally. After discussion, the Commission voted to recommend to the mayor (1) that the executive director of the Commission be discharged and (2) that the salaries paid to the Commission’s four employees be increased. Subsequently, the mayor did discharge the executive director, but the salary increases were not all approved.

Plaintiffs sued for a writ of mandamus and a declaratory judgment. This case was tried in Madison County after a change of venue. The trial court, after considering the pleadings, admissions, affidavits, exhibits, briefs and arguments, decided there was no genuine issue of fact, but there was an issue of law concerning whether the Illinois open meetings law was constitutional and applicable to the City of Springfield, a home rule unit. In a summary judgment, the court declared the open meetings law constitutional and applicable to tire City of Springfield and its advisory Human Relations Commission. Specifically, the court held the Springfield Human Relations Commission, on March 13, 1972, violated the open meetings law insofar as discussion and action on salaries and action (but not discussion) on the dismissal of its executive director were held behind closed doors. Because the issues were moot, the court denied mandamus, but issued a declaratory judgment because it thought a substantial public interest would be served.

Specifically at issue was whether the open meetings law applied to the City of Springfield since it was a home rule unit, and whether the Springfield Human Relations Commission could hold a closed meeting under the exceptions provided in the open meetings law to discuss and make recommendations concerning dismissal of its executive director and salary increases for its four paid positions. These issues are moot. There is a well established exception in Illinois to the mootness rule; it allows a declaratory judgment on moot issues if the issues are of substantial public interest. (People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769; Partney v. Dallas, 111 Ill.App.2d 261, 250 N.E.2d 166.) However, this exception is applied narrowly and courts are very reluctant to render advisory opinions on moot questions. (Johnson v. Board of Education, 79 Ill.App.2d 22, 223 N.E.2d 434; Hill v. Murphy, 14 Ill.App.3d 668, 303 N.E.2d 208.) The public interest must be very clear to prevent the dismissal of an appeal involving only moot questions. In determining whether there is sufficient public interest, three criteria are to be considered in deciding to bring the moot case within the public interest exception: (1) the public nature of the question, (2) the desirability of an authoritative determination for the future guidance of public officers, and (3) the likelihood of future recurrence of the question.

In Johnson v. Board of Education, 79 Ill.App.2d 22, 223 N.E.2d 434, the court held that the open meetings law is so clear and unequivocal that there is not sufficient public interest in a judicial interpretation of that statute to bring the issues within the public interest exception to the mootness rule. We agree. The open meetings law clearly applies to the City of Springfield by virtue of Public Act 78-448 (Ill. Rev. Stat. 1973, ch. 102, par. 46). The plain language of the open meetings law says public bodies, including advisory bodies to home rule units such as the Springfield Human Relations Commission, must meet publicly unless they are authorized by statute to hold closed sessions in certain instances; the exceptions allowing closed meetings are few and must be narrowly construed because they derogate the general policy of open meetings.

In summary, the issues of this case are moot and do not call for a judicial opinion. The recent amendment to the open meetings law specifically makes the provisions of the Act the minimum requirements for home rule units; therefore, the open meetings law does apply to the City of Springfield and its Human Relations Commission even if it did not before. The executive director is long gone and the salary changes for fiscal year 1972-73 are merely part of the city’s budget history and are of no consequence today. We agree with the trial court that it would be absurd to say the Commission must now hold a new meeting to consider these matters in public. In addition, we are of the opinion that this case has not met the three criteria to allow the application of the public interest exception to the mootness rule. Although the questions involved are public in nature, the present law is so clear that an authoritative determination for future guidance is not needed and the likelihood of future recurrence of these same questions is improbable. Therefore, this court will not render a declaratory judgment.

This case is now moot and therefore this appeal is dismissed.

Appeal dismissed.

EBERSPACHER and CREES, JJ., concur.


author: Mr. JUSTICE CARTER

text:
    The Department of Transportation, Petitioner-Appellee, v. Veach Oil Company et al., Defendants—(Veach Oil Company, Defendant-Appellant.)
    (No. 73-175;
    Fifth District
    September 4, 1974.

      Harris and Lambert, of Marion, for appellant.
    James W. Sanders, of Marion, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The appellee filed a petition for condemnation to condemn certain property owned by the appellant, Veach Oil Company. Subsequently, appellee voluntarily filed a motion for dismissal of its petition for condemnation. The trial court granted the appellee’s motion to dismiss its petition for condemnation; denied appellant’s motion in opposition to such dismissal; and further denied appellant’s motion for leave to file a mandamus action against the then Governor of the State of Illinois and Secretary of Transportation to compel the institution of an eminent domain proceeding.

We agree with the trial court and affirm its decision.

Appellant owned a service station at the intersection of Illinois Routes 37 and 146 in Johnson County, with unlimited access to each route at the time of appellee’s filing its petition for condemnation. The appellee intended to take a strip of land off the Veach service station property and proposed to build curbing and entranceways around the Veach station thereby causing limited access to the Veach station. Preliminary just compensation for the taking of land was fixed by order of the trial court at $35,000 for property taken and $35,000 for damage to property not taken. However, subsequently the appellant moved to dismiss its petition for an injunction to restrain appellee from installing such curbing and entranceways (this petition for injunction is not the subject of appeal in this case — see companion case on appeal).

In its verified motion in opposition to appellee’s motion to dismiss, the appellant asserted, inter alia, that in reliance upon certain representations made by agents for the Department of Public Works and Buildings (now Department of Transportation), namely, that part of Veach’s land including a maintenance building would be condemned, Veach had built a new building at an approximate cost of $13,261.85.

The first question that confronts us is whether appellee had a right to dismiss or abandon its eminent domain action against appellant. Section 10(a) of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 10(a)) clearly gives appellee the right to dismiss its petition for condemnation. Indeed, the condemnor may abandon the proceeding by failure to pay the amount determined as just compensation within the time fixed by the court for payment.

Appellant argues, however, that the doctrine of estoppel in pais applies to appellee under the circumstances of this case; therefore, the appellee is estopped to dismiss its petition for condemnation. In essence appellant argues that the representations made by employees of the Department of Transportation induced appellant to construct a new building, and since such representation directly concerned appellee’s intention to condemn portions of the appellant’s property, the appellee cannot back out of its eminent domain action. We disagree with the appellant on this point. The reluctance of courts to apply the doctrine of estoppel against the State or public bodies rests on the belief that the doctrine of estoppel may impair the functioning of the State and jeopardize valuable public interests owing to the negligence, mistake, or inattention of public officials. Even if the doctrine of estoppel could be applied to the State in a condemnation proceeding, reliance of the property owner upon the representations made by the State must be reasonable. The filing of a petition for condemnation which is noted above can be voluntarily dismissed or abandoned by the condemnor pursuant to statute and cannot be, per se, a representation by the State upon which such reliance can be placed as to subsequently estop the State from dismissing or abandoning the condemnation proceeding. How then can the repz-esentation regarding the State’s intention to condemn, made by an agent of the Department of Transportation, be a representation upon which reasonable reliance can be placed as to later estop the State from dismissing its petition for condemnation? Both the petition for condemnation and such early representatiozis are expressions of the State’s intention to condemn, not the actual condemnation or taking itself. Section 10(a) of the Eminent Domain Act clearly permits the State to change its mind — to alter or abandon its previous intention — by dismissing its petition to condemn.

More importantly, appellant has failed to show that the State has actually invaded or directly damaged its property. In City of Quincy v. Sturhahn, 18 Ill.2d 604, 165 N.E.2d 271, the supreme court noted that situations may indeed arise which justify the invocation of the doctrine of estoppel, even against the State acting in its governmental capacity. However, the supreme court also stated:

“* # * we have always adhered to tire rule that mere nonaction of governmental officers is not sufficient to work an estoppel and that before the doctrine can be invoked against the State # * there must have been some positive acts by the officials which may have induced the action of the adverse party under circumstances where it would be inequitable to permit the [State] to stultify itself by retracting what its officers had previously done.” (Emphasis added.) City of Quincy v. Sturhahin, 18 Ill.2d at 614, 165 N.E.2d at 277.

Nothing in the record reflects that appellee has committed a “positive act” within the meaning of City of Quincy v. Sturhahn, supra, to justify the invocation of the doctrine of estoppel.

Appellant also argues that the trial court erred in not granting its motion for leave to file a mandamus action to compel the institution of eminent domain proceedings. We disagree with the appellant for the reason that no part of the appellant’s property has yet been taken. Damages to an owner of land, no part of which has been physically taken by the State, are not within the purview of the Illinois Eminent Domain Act. A property owner may indeed have an action at law for consequential damages against the State and such owner can pursue such remedy in the court of claims. In Horn v. City of Chicago, 403 Ill. 549, 559, the supreme court held that eminent domain proceedings are not required to ascertain consequential damages and that a property owner suffering consequential damages is remitted to an action at law for the recovery of his damages. In order to compel eminent domain proceedings a property owner must show an actual physical invasion to his property. Appellant has not shown such physical invasion or damage to its property. To allow an individual property owner to compel an eminent domain action by way of mandamus before his property is taken would be tantamount to requiring the State to condemn such property owner’s property because the State was considering a public improvement which, if constructed, might damage such owners property.

For the reasons stated above, we affirm the trial court’s order granting appellee’s petition to dismiss its petition for condemnation and denying appellant’s motion for leave to file a mandamus action.

Affirmed.

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


text:
    Veach Oil Company, Plaintiff-Appellant, v. Richard B. Ogilvie, Governor of the State of Illinois, et al., Defendants-Appellees.
    (No. 73-44;
    Fifth District
    September 12, 1974.
    Harris and Lambert, of Marion, for appellant.
    James W. Sanders, of Marion, for appellees.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

Appellant, Veach Oil Co., sought to enjoin certain state officials from exercising police powers as provided by section 4 — 210 of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 4 — 210). The trial court below dissolved a temporary restraining order against the appellees and dismissed appellant’s complaint for permanent injunction. The trial court found that an injunction would not lie because appellant had adequate remedies at law.

We agree with the trial court.

Only those facts which will be necessaiy for a determination in this case will be recited. Appellant owned a service station at the corner of intersecting highways, and the State proposed to build curbing and entranceways around the service station, thereby causing limited access to the appellant’s station. Through its appropriate agencies, the State instituted a condemnation proceedings (see companion case on appeal), and, upon the State’s exercising its right to “quick take,” the trial court awarded $70,000 to appellant as a preliminary just compensation for damages to the appellant. Thereafter, according to the appellant’s complaint, the Department of Public Works (now Department of Transportation) through its employees informed appellant that appellant would have to agree to reduce the amount of the quick take to $50,000, and, if it did not do so, the State would cause the dismissal of the condemnation proceedings against the appellant. The appellee would then build the proposed curbing and entranceways around appellant’s station pursuant to police powers provided by section 4 — 210 of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 4 — 210). Appellant refused to reduce “voluntarily” the amount of the quick-take award, and the State then dismissed its condemnation proceedings against appellant. The appellant claims that the State then began exercising its police powers by advertising and seeking to advertise for bids to construct the curbings and entranceways and that the Governor, Secretary of Transportation, Chief Engineer, and others were “about to let” a contract to build entranceways and curbings around the service station without paying compensation therefor. Appellant also claims that even before the condemnation action was instituted, it had relied on certain representations made by the State (namely: that part of appellee’s land would be condemned) and accordingly, appellant had built a new garage at a cost of $13,201.85.

The issue presented on this appeal is whether appellant has an adequate remedy at law which would bar injunctive relief. It is very clear to us that appellant does have an adequate remedy at law. The Illinois Court of Claims was established to provide an adequate remedy at law for one who believes he has been damaged by the State of Illinois:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the State founded upon any law of the State of Illinois or upon any regulation thereunder by an executive or administrative officer or agency * * (Ill. Rev. Stat. 1971, ch. 37, par. 439.8.)

Appellant itself admits in its brief that it is not precluded from seeking damages in the Court of Claims. Injunctive relief is not a remedy to be casually invoked or lightly granted. This is especially true when an injunction is aimed at elected or appointed State officers exercising police powers pursuant to section 4 — 210 of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 4 — 210). In order to qualify for injunctive relief, the proponent must show that it is sustaining or is about to sustain an injury which would be irreparable (uncompensable) by money damages alone. Appellant has failed to show such irreparable injuries. Indeed, appellant alleges only that appellees seek to advertise for further bids for the building of the curbing and entranceways and are about to let a contract to build entranceways and curbing around such service-station property of Veach Oil Co. without paying compensation therefor. Such injuries are “reparable” by money damages which the appellant can seek in the Court of Claims.

In support of its position for injunctive relief against State officials, appellant cites Joos v. Illinois National Guard, 257 Ill. 138, as establishing that officers of the State who act under an unconstitutional law or who act outside or beyond the scope of their authority may be enjoined and cannot raise the bar of sovereign immunity. However, the Joos case is readily distinguishable from the instant case. In Joos, the supreme court affirmed the enjoining of an adjutant general and range officer from using a rifle range, the operation of which was endangering the lives as well as the property of citizens. In Joos, there was the need for immediate action. There is no such immediacy presented in the instant case. Indeed, appellant seeks not to enjoin what is being done but what is about to be done. In any event, such action is readily reparable and compensable by money damages in the Court of Claims.

Appellant also urges this appellate court to “engraft” a bad faith “doctrine” on the rules set down in Joos by holding that State officers are amenable to injunction suit and may not raise the bar of sovereign immunity when such State officers act in bad faith. In view of our finding that appellant has an adequate remedy at law and because it has failed to show injury irreparable by money damages, we see no reason to consider the question of “bad faith” in its relation to an injunction suit against State officials.

The order of the trial court dissolving the temporary restraining order and dismissing the permanent injunction suit is affirmed.

Affirmed.

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


author: Mr. JUSTICE EBERSPACHER

text:
    John E. McCue et al., Plaintiffs-Appellants, v. Robert R. Brown, Acting County Superintendent of Highways of Gallatin County, et al., Defendants-Appellees.
    (No. 73-58;
    Fifth District
    August 29, 1974.

      Charles W. Phillips, of Ridgway, for appellants.
    Joseph R. Hale, of Shawneetown, for individual appellees.
    Dayton L. Thomas, State’s Attorney, of Shawneetown, for appellee Robert R. Brown.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Gallatin County, dismissing plaintiffs’ complaint in an action seeking judicial review of a final decision of a superintendent of highways to vacate a section of a township road.

Defendant Brown, acting county superintendent of highways of Gallatin County, entered an order dismissing plaintiffs’ appeal from a final decision of the highway commissioner of the town of Bowles Mill to close a segment of a township road. Plaintiffs appeal from the judgment of tire trial court which dismissed their complaint for review on the ground that they, plaintiffs, lacked the legal capacity to sue.

Plaintiff John E. McCue has a life estate in a tract of land used for tree farming which lies within 2 miles of the road segment subject to the highway commissioner’s vacation order. Plaintiff Don J. McCue holds a remainder interest in the same tract of land by virtue of the last will and testament of his grandfather, John E. McCue, Sr., a certified copy of which was introduced into evidence during hearings held before the county superintendent of highways. The precise nature of Don McCue’s property interest is unclear. The parties agree that he has a remainder interest, but disagree whether his interest is vested or contingent. Don McCue has no other property interest in any other tract of farm land lying within 2 miles of the road segment involved in these proceedings.

The record shows that said road segment currently provides the only means of access to the McCue’s land. The McCues, in their complaint, allege that the closing of said road will adversely affect them by totally eliminating access to their tract.

Plaintiff Margaret Ellis owns 250 acres of farm land north of the McCue property. A creek, known as the Saline River, separates the two tracts. The record shows that the road segment involved in these proceedings currently provides no access to the Ellis land and that its closing will not adversely affect plaintiff Ellis. Mrs. Ellis attended the hearing on the closing of the road conducted by the highway commissioner but failed to make oral or written objections to the closing.

Plaintiffs’ complaint alleged that Robert R. Brown, as acting county superintendent of highways of Gallatin County, Illinois, held a hearing on December 10, 1971, on appeal from a final order of the highway commissioner of the town of Bowles Mill vacating a certain 970-foot portion of a township road and that on March 3, 1972, the acting county superintendent of highways filed a final order dismissing plaintiffs’ appeal from the highway commissioner. In his order of March 3, the acting county superintendent found that plaintiffs failed to meet the requirements for obtaining review of the highway commissioner’s order as provided in section 6 — 312 of the Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 6 — 312):

“In case such final order was entered by the highway commissioner as provided in Section 6 — 311 of this Code, finally determining the advisability of such proposed laying out, widening, alteration or vacation of any township or district road, any 3 qualified petitioners who may have signed the petition for such proposed laying out, widening, alteration or vacation, or any 3 legal voters residing within 2 miles of any portion of such- road, or any 3 others persons owning land operated as a farm within 2 miles of any portion of such road, may (if either they are qualified petitioners or they both have raised objections at the hearing pursuant to Section 6 — 311 of this Act and will be directly and adversely affected # # (Emphasis.added.)

The complaint alleged that the.county superintendent improperly dismissed plaintiffs’ appeal from the highway commissioner without a hearing on the merits. The record shows that the county superintendent of highways limited questioning to the qualifications of plaintiffs under section 6 — 312 to pursue an appeal from the highway commissioner’s final order. Plaintiffs, in their complaint, alleged that they are either legal voters residing within 2 miles of the portion of road involved in these proceedings or owners of lands operated as a farm within 2 miles of said portion, or both, and that they were denied permission to offer evidence before the highway commissioner or to present evidence on the merits before the county superintendent of highways. Plaintiffs further alleged that no sworn evidence was received at hearings before the county superintendent.

Plaintiffs’ complaint also asserted the invalidity of proceedings before the highway commissioner and that provisions of the Highway Code (Ill. Rev. Stat. 1971, ch. 121, pars. 6 — 312 (heretofore set forth), 313, 315a, which limit appeals from highway commissioner and highway superintendent road-vacation orders to certain qualified petitioners, contravene the Illinois Constitution (Ill. Const. Art. I, §§ 2, 12 and 15) and therefore are unconstitutional.

On April 21, 1972, the named defendants (appellees herein) filed a joint motion to dismiss the complaint or, in the alternative, for summary-judgment. Part I of the motion sought dismissal on the ground that plaintiffs lacked legal capacity to sue; Part II moved for summary judgment; and Part III sought dismissal on the ground that plaintiffs’ complaint was substantially insufficient in law. The plaintiffs filed a motion to strike defendants’ joint record and the partial record and, in the alternative, moved that the entire record of all administrative agencies be ordered filed. The motions were heard before the trial court and that court entered an order denying plaintiffs’ motion to strike and plaintiffs’ alternative motion to order all records filed and granting Part I of defendants’ motion to dismiss without considering Parts II and III of defendants’ joint motion.

Defendants-appellees contend that the only question for determination by this court is whether there was sufficient ground in the defendants’ joint motion to dismiss to warrant the judgment of the trial court dismissing plaintiffs’ complaint for administrative review. We agree. Plaintiffs are limited in this appeal to a review of tire judgment below.

Under the statutes in question, only plaintiff John E. McCue clearly meets the statutory requisites for judicial review. Arguably, plaintiff Don McCue qualified as an owner of land operated as a farm within the meaning of section 6 — 312. However, this appeal does not require such a determination. The plaintiff, Margaret Ellis, testified that she will not be adversely affected by the vacation and that she did not make oral or written objections at the hearing before the highway commissioner. Consequently, plaintiffs do not fall within that class of persons eligible to obtain judicial review within the provisions of section 6 — 315a of the Highway Code (Ill. Rev. Stat. 1971 ch. 121, par. 6 — 315a), and the court below properly dismissed their complaint for administrative review.

The plaintiffs contend herein that the statutes which are the basis of the denial of review (Ill. Rev. Stat. 1971, ch. 121, pars. 6 — 312, 313, 315a) contravene the provisions embodied in the United States Constitution, amendments V (due process) and XIV. However, since this issue was not raised in any of the proceedings below it cannot be urged for the first time on appeal. People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353; City of Chicago v. Birnbaum 49 Ill.2d 250, 274 N.E.2d 22; Jarvis v. Herrin City Park District, 6 Ill.App.3d 516, 285 N.E.2d 564.

The plaintiffs also contend, as they did in their complaint, that these statutes are contrary to the Illinois Constitution (Ill. Const, art. I, §§ 2, 12 and 15) and, therefore, such statutes are unconstitutional and void. One of these statutes, section 6 — 315a of the Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 6 — 315a), provides a statutory proceeding for review. Our supreme court, in People ex rel. Munn v. McGoorty, 270 Ill. 610, 621, 110 N.E. 791, has ruled that: “In statutory proceedings the legislature has the power to provide how such cases shall be reviewed, if at all * 6 e” (emphasis added), and also, at page 617, that “there is a marked distinction between such cases [review of courts of record] and cases arising in purely statutory proceedings, in which the legislature may provide for an appeal or review and the manner thereof, or may provide that there be no appeal or review.” (Emphasis added.)

This holding has been reiterated in subsequent decisions, in which our supreme court has emphasized that, in reviewing statutory proceedings, a "court can obtain jurisdiction to review the decisions only in the manner prescribed by the legislature.” (Berry v. Industrial Com. (1973), 55 Ill.2d 274, 277, 302 N.E.2d 277. See also. Peter H. Clark Lodge No. 483 v. Industrial Com., 48 Ill.2d 64, 268 N.E.2d 382.) Furthermore, our supreme court held in Vissering Mercantile Co. v. Annunzio, 1 Ill.2d 108, 115 N.E.2d 301, that there is no constitutional right to judicial review of administrative adjudicative action. Authority for this view originates in article 6, section 9 of the Illinois Constitution of 1970, which provides that “Circuit Courts shall have such power to review administrative action as provided by law.” It should be noted that plaintiffs do not attack article 6, section 9 of the Illinois Constitution on Federal constitutional grounds.

Appellants refer to article I, section 12 of the Illinois Constitution and its provision that every citizen “shall find a certain remedy in the laws for all injuries and wrongs which he receives ” * However, this language is similar to the language of the previous constitutional guarantee (Ill. Const, art. II, § 19), which was in effect at the time of the McGoorty decision.

Both appellants and appellees rely on No. 3 Oakland Suburban Heights, Inc. v. Bekermeier, 94 Ill.App.2d 67, 235 N.E.2d 867, for support in resolving the constitutionality of section 6 — 315a. Since the court’s holding avoided the constitutional question, any reference to constitutionality or unconstitutionality is purely dictum. However, our reading of this decision supports appellees’ position, in that the court’s focus was whether there existed a remedy for the plaintiffs’ claims for damages for the partial loss of access to their properties. The court emphasized that:

“Persons whose land does not immediately adjoin a highway but who are affected by its vacation and, who in fact suffer an injury which is not common to the public generally, have a right of action against a public body which is subject to suit.” (94 Ill.App.2d at 71.)

Similarly, in the present case, under the rationale of Bekermeier, plaintiffs are not precluded from filing an action for damages resulting from the denial of access to their property. The court’s constitutional concern in Bekermeier seemed to be whether any remedy for damages be limited to the existence of three plaintiffs.

Accordingly, the decision of the trial court is affirmed.

Judgment affirmed.

CREBS and JONES, JJ., concur.

       Section 6 — 315a of the Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 6— 315a) provides in pertinent part:
      “Any 3 persons who, at a hearing conducted by the county superintendent of highways pursuant to Section 6 — 306, 6 — 311 or 6 — 312 of this Act, have been permitted to appear, * * *, and to introduce evidence and cross examine witnesses may (if they are qualified petitioners, or have raised objections at a hearing pursuant to Section 6 — 311 or 6 — 312 of this Act and will be directly and adversely affected by such proposed alteration or vacation) obtain judicial review of such final administrative decision of the superintendent * *


text:
    Angela Morgan, by her Father and Next Friend, Clifford Morgan, Plaintiff-Appellee, v. The Board of Education, Trico Community Unit School District No. 176, et al., Defendants-Appellants.
    (No. 74-11;
    Fifth District
    September 11, 1974.

      R. N. Gandy and R. K. Peek, both of Du Quoin, for appellants.
    Douglas A. Ingold, of Land of Lincoln Legal Assistance Foundation, of Carbondale, and Thomas M. Vaught, for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

This action was brought to enjoin the defendant school district from retaining the plaintiff, Angela Morgan, in kindergarten and to obtain a declaratory judgment that the plaintiff be entitled to attend the first grade. The Circuit Court of Jackson County, Illinois, granted both a temporary and permanent injunction enjoining the defendant from refusing to allow Angela Morgan to enroll in the first grade and ordered that she be admitted to the first grade. It is from that order this appeal was taken.

The facts in this case are not in dispute. Pursuant to section 10 — 20.19a of the School Code (Ill. Rev. Stat. 1973, ch. 122, § 10 — 20.19a), which became effective after July 1, 1970, the defendant Trico School District established a kindergarten as an integral part of the school system, integrated with grades one through six. During the 1972-73 school year, the defendant school board incorporated into its curriculum a “readiness test” to be administered to all students entering the first grade from kindergarten. All students who wished to enter the first grade were required to take the “readiness test” and pass it.

At age 5, the plaintiff Angela Morgan entered the Trico school system attending the kindergarten class during the 1972-1973 school year. Her teacher, Karen Conner, testified that she attended irregularly, being absent a total of 40 days during the school year. At the end of her year in kindergarten Angela was given the “readiness test,” but did not pass. Her teacher therefore recommended that she be retained in kindergarten.

During the summer of 1973, Angela was enrolled in the summer session of the Trico school system. At the end of the summer session and prior to the commencement of the 1973-1974 school year, Angela was again given the “readiness test” and the results indicated that she had made no progress during the summer session. As a result, she was refused admission to the first grade when her parents tried to enroll her in tire first grade at the beginning of the 1973-1974 school year. It is important to note that the attorneys representing both sides and the trial court itself were not interested in the validity of the testing procedure, and therefore this is not an issue to be concerned with on appeal.

Disturbed by the defendant’s refusal to permit their daughter to enroll in first grade, Angela’s parents brought this action which caused the defendant to be enjoined from preventing Angela’s enrollment.

The substantive issue on appeal involves the question of whether or not the defendant school system has the statutory authority to retain a 6-year-old child in kindergarten, because of her inability to successfully complete a “readiness test” required of all children passing from kindergarten to first grade in the Trico school system. The defendant-appellant argues that the Illinois School Code (Ill. Rev. Stat. 1973, ch. 122, §§ 1 — 1 to 36 — 1) grants the school board the duty and authority to establish different grades and adopt regulations for the admission of pupils into them. It contends that kindergarten is a grade within the school system, that once a pupil has entered the school system that pupil is subject to the rules and regulations of the school board and their administrators, and that once enrolled in kindergarten a pupil may be required to meet a minimum standard of achievement or knowledge before that child will be permitted to go on to first grade.

On the other hand, the plaintiff-appellee argues that under Illinois law there is no requirement that a child attend Idndergarten. While it is mandatory for school boards to provide a kindergarten (Ill. Rev. Stat. 1973, ch. 122, § 10 — 20.19a), plaintiff argues that the law does not mandate that parents send their children to a kindergarten, since section 26 — 1 of the School Code (Ill. Rev. Stat. 1973, ch. 122, §26 — 1) makes it the duty of parents of children between the ages of 7 and 16 years to see that they attend some public school and section 10 — 22.18 of the School Code (Ill. Rev. Stat. (1973), ch. 122 §10 — 22.18) manifests an intent by the legislature that kindergartens be established for the instruction of children between the ages of 4 and 6 years only. Furthermore, plaintiff argues that since the School Code requires, first, that each school board provide for a minimum school term of at least 185 days to insure 176 days of actual pupil attendance (Ill. Rev. Stat. 1973, ch. 122, § 10— 19) and secondly, that each school board has a duty to establish “a sufficient number of free schools for the accommodation of all persons 000 over the age of 6 and under 21 years, and to secure for all such persons the right and opportunity to an equal education in such schools” (Ill. Rev. Stat. 1973, ch. 122, §10 — 20.12), and since the Trico school district conducts kindergarten for a half day only, the retention of Angela in kindergarten would in effect deny her the right to a free and equal education. And lastly, the plaintiff contends that a kindergarten program designed for children between 5 and 7 years of age, such as Trico’s, contravenes Illinois law and public policy to the extent that kindergarten was designed for children between the ages- of 4 and 6 years. Ill. Rev. Stat. 1973, ch. 122, § 10 — 22.18.

The trial court, in rendering its decision, found that although a school district is required to maintain a kindergarten, there is no corresponding duty to attend kindergarten, and, in that Angela was denied enrollment in first grade, she was denied equal protection of the laws. The court found significant testimony that children who move into the district were treated differently. Those who were certified as having completed kindergarten in another district were not subjected to the same “readiness tests” as youngsters moving from the Trico kindergarten to first grade, even though the other district might have vastly different standards. Even if the Trico school district received a 7-year-old from another system who had not attended kindergarten, he would be placed in the first grade.

No Illinois cases deal with this issue. We are, therefore, faced with an issue of first impression. The problem is essentially one of statutory interpretation, defining the scope of and limits to a school board’s power. In order to effectively deal with the issue, it is necessary to first consider the applicable statutes involved. Illinois law requires that such school board provide a minimum school term of 185 days to insure 176 days of actual pupil attendance. (Ill. Rev. Stat. 1973, ch. 122, § 10 — 19.) The school board has a duty to establish and keep in operation during a school term a sufficient number of free schools to accommodate all persons in its district over the age of 6 and under 21 years, and to secure for all such persons the right and opportunity to an equal education in such schools. (Ill. Rev. Stat. 1973, ch. 122, §10 — 20.12.) Under section 10 — 20.19a of the School Code (Ill. Rev. Stat. 1973, ch. 122, § 10— 20.19a) the school board has a duty to establish and maintain kindergartens for children in accordance with rules and regulations prescribed by the Superintendent of Public Instruction. And under section 10 — 21.2 of the School Code (Ill. Rev. Stat. 1973, ch. 122, § 10 — 21.2) the school board has a duty to establish schools of different grades and to adopt regulations for the admission of pupils into them.

Prior to the passage of section 10 — 20.19a, the school board had the power to establish kindergartens for the instruction of children between the ages of 4 and 6 years, if the public interest required it and the board received a petition from 50 parents or guardians of children between the ages of 4 and 6 years requesting a kindergarten. (Ill. Rev. Stat. 1973, ch. 122, § 10 — 22.18.) Even though section 10 — 20.19a makes the establishment of kindergartens mandatory, section 10 — 22.18 manifests the intent of the Illinois legislature that kindergartens are for children between the ages of 4 and 6 years.

Article 26 of the School Code deals with the compulsory attendance of pupils. Whoever has custody or control of any child between the ages of 7 and 16 years must see that the child attends some public school. (Ill. Rev. Stat. 1973, ch. 122, § 26 — 1.) And, any person having custody or control of a child who is below the age of 7 or above the age of 16 years and who is enrolled in any of the grades 1 through 12 must see that he attends the public school. Ill. Rev. Stat. 1973, ch. 122 §26 — 2.

Since kindergarten was intended by the legislature to be for children between the ages of 4 to 6 years, and there is -no statutory requirement that a child under 7 years of age attend school unless he is enrolled in grades 1 through 12, it appears that there is no statutory requirement that a child attend kindergarten before first grade. The defendant-appellant, however, has argued that the Trico school board has established a kindergarten in compliance with section 10 — 20.19a, and pursuant to section 10 — 21.2 has made kindergarten a grade and required that each child must pass a “readiness test” after kindergarten before he will be permitted to enroll in first grade. In support of this argument defendant cites a legal opinion by the legal division of the office of the Superintendent of Public Instruction dated November 30, 1971, which concludes that sections 10 — 20.19a and 10 — 21.2, when read in conjunction with one another, permit a school board in the exercise of its reasonable judgment to require students to attend kindergarten as a prerequisite to first grade and to exercise its discretion in placing children in any grade level. The citation of authorities for that opinion is devoid of Illinois case law, but includes three Néw York cases which express different views on the subject.

The opinion states that New York educational law requires that children from 7 to 16 years of age must attend school and that schools may offer kindergarten to children between the ages of 4 and 6. In the case of Isquith v. Levitt, 137 N.Y.S. 2d 493 (1954), the plaintiff brought an action to compel the board of education to register his 5-year-old in first grade. The school board refused the enrollment because the child had not attended kindergarten. Plaintiff alleged that the school board could not force his child to attend kindergarten since New York law did not make such attendance mandatory. The court held that once a kindergarten has been made a part of the educational system pursuant to school board discretion, the board has the power to promote rules and regulations for promotions based upon ability and not age. While a child of 5 is entitled to attend public school, the court held that his parents could not insist that the child be admitted to a particular grade. And in the later case of Silverberg v. Board of Education, 60 Misc. 2d 701, 303 N.Y.S. 2d 816 (1969), testing was supported as a basis for placement.

However, a contrary opinion was expressed in the case of In re Winters, 208 Misc. 953, 146 N.Y.S. 2d 107 (1955), wherein the parents tried to enroll their 7-year-old in the first grade in 1955-56. The child attended all but a small part of kindergarten in the 1953-54 school year and did not attend school in 1954-55. She was denied admittance to the first grade after she failed to pass a readiness test. The court held that since kindergarten was a permissive grade not required by statute, a child could not be compelled to attend kindergarten.

On the rationale of these opinions, the legal adviser concluded that Isquith represents the better view and that unlike New York, kindergarten is part of the mandated educational system of Illinois. Since section 10 — 20—19a requires that kindergartens be established pursuant to the rules and regulations of the Superintendent of Public Instruction and since it is generally held that school boards are empowered with the authority to establish and maintain standards for the promotion of pupils from one grade to another (Ill. Rev. Stat. 1973, ch. 122, § 10— 21.2; Creyhon v. Board of Education, 99 Kan. 824, 163 P. 145 (1917); Barnard v. Inhabitants of Shelburne, 216 Mass. 19, 102 N.E. 1095 (1913) ), 'the appellate court is generally not at liberty to interfere with the discretionary authority vested in a school board absent arbitrary or capricious action. Randolph v. School Unit 201, 132 Ill.App.2d 936, 270 N.E.2d 50 (1971).

On the other hand, it is undeniably a judicial function to determine and follow, where it is not legally interdicted, legislative intention. (Wigginton v. Reichold Chemicals, Inc., 133 Ill.App.2d 776, 274 N.E.2d 118 (1971).) And furthermore, an appellate court is not free to ignore the plain language of a statute. (Provus v. Board of Education, 11 Ill.App.3d 1058, 298 N.E.2d 405 (1973).) While it may be the function of the legal advisor to the Superintendent of Public Instruction to interpret the School Code and while, the defendant in the ease at bar seemed to follow his opinion in exercising its discretion, it is the function of this court to render a definitive ruling on the meaning of the School Code.

As was mentioned above, a reading of the applicable statutory provisions indicates that kindergarten is intended to be for children between 4 and 6 years of age and that attendance is mandatory for a child younger than 7 only if that child is enrolled in grades 1 through 12; therefore, although kindergarten must be established by the school board, it is not mandatory that children attend kindergarten. In addition, the law requires that a school board establish free schools each year during a school term of at least the minimum length for all persons over the age of 6 and under 12 years. (Ill. Rev. Stat. 1973, ch. 122, § 10 — 20.12.) Since Angela is 6 years old and the Trico school district only conducts kindergarten for half-day sessions, her retention in kindergarten would mean that she would not attend a school term of the minimum length of 185 days. Furthermore, section 10 — 20.12 requires that the school board secure for all persons in the district the right and opportunity for an equal education. Since children who attend the Trico school system kindergarten must pass the “readiness test” to move to first grade, but 7-year-olds who move into the Trico system are automatically registered in first grade without being tested, the children in the Trico district are being denied an opportunity for an equal education and equal protection of the law.

For the foregoing reasons the judgment is affirmed.

Judgment affirmed.

CREBS and CARTER, JJ., concur.


text:
    Victorian Inns, Inc., Plaintiff-Appellant, v. John R. Benda, d/b/a Town & Country Motel, Defendant-Appellee.
    (No. 74-45;
    Fifth District
    September 12, 1974.

      Edgar J. McLaughlin, of Cape Girardeau,. Missouri, for appellant.
    Lansden & Lansden, of Cairo, for appellee.


text:
    Moss-American, Inc., Plaintiff-Appellee, v. The Illinois Fair Employment Practices Commission et al., Defendants-Appellants.
    (No. 73-149;
    Fifth District
    September 24, 1974.

      William J. Scott, Attorney General, of Chicago and Cohn, Carr, Korein, Kunin and Brennan, of East St. Louis (Paul J. Bargiel, A. Zola Groves, and Robert G. Epsteen, Assistant Attorneys General, and Rex Carr, of counsel), for appellants.
    George S. Hecker, of Bryan, Cave, McPheeters & McRoberts, of St. Louis, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of St. Clair County, dismissing a complaint of the appellant, the Fair Employment Practices Commission of the State of Illinois, which had been issued by it against the appellee, Moss-American, Inc., under the Illinois Fair Employment Practices Act (Ill. Rev. Stat. 1967, ch. 48, par. 858). The complaint had been issued on behalf of Joe W. Fenton and Kenneth Baker, employees of Moss-American, who claimed that Moss-American had been guilty of an unfair employment practice in violation of the Illinois Fair Employment Practices Act.

The trial court’s order of dismissal of February 28, 1973, was based upon the grounds that: (1) the Commission failed to dismiss the complaint of appellant Baker in accordance with section 8 of the Act, (2) the decision of the Commission was arbitrary and unreasonable, (3) the Commission and the circuit court are bound by prior arbitration decisions on the matters of seniority, etc., as alleged in the complaint, and (4) the Commission had no jurisdiction to hear the complaint. The specific order of the Circuit Court fails to mention the disposition of Fentons complaint. Neither appellee nor appellants have noted this in their briefs, and all parties take the position that the circuit court by its revised order dismissed the complaints filed on behalf of Baker and Fenton.

The three issues to be resolved are:

(1) Did the Fair Employment Practices Commission of Illinois have jurisdiction to hear the complaints of appellants, Joe W. Fenton and Kenneth Baker, under section 8 of the Fair Employment Practices Act of Illinois (Ill. Rev. Stat. 1967, ch. 48, sec. 858)?
(2) Does arbitration of a grievance relative to seniority rights under a collective bargaining agreement deprive the Fair Employment Practices Commission of jurisdiction to determine charges of racial discrimination filed with it?
(3) Was the decision of the Fair Employment Practices Commission of Illinois arbitrary and unreasonable?

After a brief history of the case, we will treat the issues in the order-presented. Appellants Fenton and Baker were black employees working as laborers by appellee since May, 1966, and January, 1966, respectively. A vacancy in a job classification “mechanic” occurred in March, 1968, and both appellants bid for the position. However, they lost to the only other applicant, Walter Schlemmer, a white laborer. The appellants immediately filed grievances through their union representative, charging that, since each of them had been employed longer than Schlemmer, each therefore had greater “seniority” than Schlemmer. The grievance was arbitrated in accordance with the collective bargaining provision between the appellee and District 50 of the United Mine Workers of America. The arbitrator found that the company did not violate the seniority provisions of the collective bargaining agreement and that there was no evidence that the management acted in an arbitrary, capricious or discriminatory manner.

On May 6, 1968, the Springfield office of the Illinois Fair Employment Practices Commission (hereinafter referred to as the Commission) received on printed forms provided by the United States Government certain documents in duplicate entitled “Charge of Discrimination” signed under oath by Fenton and Baker. The documents so received contained on their face printed instructions to mail them to the regional office of the United States Equal Employment Opportunity Commission, a Federal agency. The Springfield office of the Commission, a State agency, forwarded one copy of each document to the Chicago regional office of the United States Equal Employment Opportunity Commission and retained the duplicate copies of each document and assigned them numbers 68-S-15 (Fenton) and 68-S-16 (Baker), • respectively, on May 6, 1968. On May 13, 1968, a copy of each document which had been so forwarded to the Chicago regional office of tire United States Equal Employment Opportunity Commission was returned to the Springfield office of the Commission by the Chicago office pursuant to the Civil Rights Act of 1964 ( 42 U.S.C.A., § 2000E5(b), (c) (1974). Upon receipt of these documents, which contained charges of racial discrimination against appellee, the Springfield office re-docketed the documents as 68-SF-18 (Fenton) and 68-SF-19 (Baker), respectively. The Commission on October 29, 1968, ordered the charges set forth in the documents originally received by it on May 6, 1968, 68-S-15 (Fenton) and 68-S-16 (Baker), dismissed for lack of jurisdiction. On November 8, 1968, complaints were issued and filed by the Commission on charge numbers 68-SF-18 (Fenton) and 68-SF-19 (Baker) against Moss-American. On August 8, 1969, the Honorable Prentice A. Marshall, hearing examiner for the Commission, after a lengthy 2-day hearing, made his report and recommended an order sustaining the complaints of Fenton and Baker. The hearing examiner’s recommended order included the following:

“(1) that Moss-American cease and desist from discrimination against its employees because of their race or color in affording them opportunities to seek promotion in employment with respondent;
(2) that Baker and Fenton each receive as compensatory back wage award that amount each would have received had he been promoted to the job classification of mechanic on March 27, 1968, and that thereafter each be compensated by Moss-American at the mechanic rate of pay until such time as employment of each is terminated or until each is afforded a non-discriminatory opportunity to bid for the position of mechanic pursuant to the collective bargaining agreement between Moss-American and District 50 of the United Mine Workers.”

The Commission, after considering appellee’s petition for review and Fenton’s and Baker’s rejoinder for petition for review, affirmed the hearing examiner’s report and adopted his recommended order.

Appellee instituted an administrative review action in the Circuit Court of St. Clair County, and appellants filed their answers thereto. On November 13, 1972, the Circuit Court entered an order finding that the Commission had no jurisdiction to hear the complaints of the appellants on the ground that prior arbitration of the matter constituted an election of remedies which was binding on the appellants. On February 27, 1973, the Circuit Court of St. Clair County entered its revised order dismissing the appellants’ complaints.

The appellee contends that the Illinois Fair Employment Practices Commission lacked subject-matter jurisdiction over the complaints of the appellants for the reason its Commission failed to issue and serve the complaints within 180 days from the date on which appellants’ charges of unfair employment practices were properly filed as required by section 8(c) of the Illinois Fair Employment Practices Act, which provides in part:

“(c) Whenever a charge of an unfair employment practice has been properly filed, the Commission, within 180 days thereof, shall either issue and serve a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and the respondent.” (Ill. Rev. Stat. 1967, ch. 48, par. 858(c).)

It should be noted that the 180-day period provided for in section 8( c) would have expired on November 2, 1968, if such period began to run as of May 6, 1968. However, the 180-day period would not have expired until November 9, 1968, if such 180-day period did not begin to run until May 13, 1968. It must be remembered that the complaints which are the subject of this case (68-SF-18 and 68-SF-19) were issued by the Commission on November 8, 1968. Appellee contends that the 180-day period commenced on May 6, 1968, and expired on November 2, 1968. Appellants contend on the other hand that the period expired on November 9, 1968, one day after the complaints were issued by the Commission. The most important question concerns when the appellants’ charges were properly filed. The Commission detérmined that the return of duplicate copies of the charges from the United States Equal Employment Opportunity Commission constitute a proper filing before the Commission on May 13, 1968. The hearing examiner took the position that the Illinois Commission did not have jurisdiction over charges sent directly to it by the complainants on Federal forms but could assume jurisdiction over the matter when the Federal agency referred copies of the charges to the Springfield office. It should also be noted that in the first instance the determination of a proper filing is to be made by the Commission.

Throughout its argument about the 180-day period as set forth in Section 8(c) of the 1967 Fair Employment Practices Act, appellee takes the position that the 180-day period is a jurisdictional requirement. This is erroneous. If there is a jurisdictional statute of hmitations in proceedings before the Commission, it should be the time period that runs between the act complained of and the date on which the charges are filed before the Commission by the person. To hold that an aggrieved party who timely files his charges with the Commission with regard to discrimination of employment will be barred from a remedy simply because the Commission fails to act timely with regard to his charges is tantamount to throwing the employed citizenry of this state to the wolves of bureaucratic indifference. The Commission was created to protect the fundamental and substantial employment rights of the citizenry with regard to non-discriminatory opportunity in employment. The Commission and the laws which created the laws of the Commission did not contemplate that the Commission’s administrative errors would (or could) prejudice such substantial statutory rights. Certainly there is nothing in the 1967 statute to suggest that the rights of the aggrieved party, once he has filed his charge with the Commission, can be forfeited by the Commission’s failure to take action. Appellants’ counsel correctly states the general rule that where a statute prescribes a time within which a public officer is to perform official acts affecting the rights of others, the time prescribed is to be considered directory unless from the nature of the act the designation of time must be considered a limitation on the power of the officer. Whalin v. City of Macomb (1875), 76 Ill. 49.

The basic controversy between the appellee and the appellants with regard to arbitration focuses upon whether the arbitration was “binding” on the Commission. This issue was finally laid to rest by the decision of the United States Supreme Court in Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 39 L.Ed.2d 147, 94 S.Ct. 1011. In the Alexander case, the petitioner, a black employee having been fired, filed a grievance under the collective-bargaining agreement between the company and his union. The arbitrator ruled that petitioner’s discharge was for cause and not as a result of racial discrimination. The petitioner also filed a complaint with the Colorado Equal Employment Opportunity Commission, and it determined that there was no reasonable ground to believe that a violation of the Civil Rights Act of 1964 had occurred. Petitioner then instituted an action in the Federal District Court. The company’s motion for summary judgment was sustained by the district court on the ground that the petitioner was bound by the prior decision in arbitration and had no right to sue under title VII of the Civil Rights Act of 1964. The Court of Appeals for the Tenth Circuit affirmed. The United States Supreme Court, however, reversed on the ground that petitioner’s statutory right to trial under title VII was not foreclosed by the prior admission of Ms claim to final arMtration under the non-discrimination clause of collective bargaining agreement. The United States Supreme Court unanimously held:

“In submitting Ms grievance to arbitration, an employee seeks to vindicate Ms contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respective appropriate forms. The resulting scheme is somewhat analogous to tire procedure under the National Labor Relations Act, as amended [29 U.S.C. § 151 et seq.], where disputed transactions may implicate both contractual and statutory rights. Where the statutory right underlying a particular claim may not be abridged by contractual agreement, the Court has recognized that consideration of the claim by the arbitrator as a contractual dispute under the collective-bargaining agreement does not preclude subsequent consideration of the claim by the National Labor Relations Board as an unfair labor practice charge or as a petition for clarification of the union’s representation certificate under the Act.” (Emphasis added.) (415 U.S. at 49-50, 39 L.Ed. 2d at 159, 94 S.Ct. at 1020-1021.)

Moreover, the United States Supreme Court found that an individual employee does not waive Ms individual right by reason of membership in a umon which is a party to a collective bargaining agreement:

“To begin, we think it clear that there can be no prospective waiver of an employee’s rights under Title VII. It is true, of course, that a union may waive certain statutory rights related to collective activity, such as the right to strike. * * * Title VII, on the other hand, stands on plainly different grounds. It concerns not majoritarian processes, but an individual’s right to equal employment opportunities. Title VII’s strictures are absolute and represent a Congressional command that each employee be free from discriminatory practice.” Alexander v. Gardner-Denver Co., 415 U.S. at 51, 39 L.Ed.2d at 160, 94 S.Ct. at 1021.

The comparison of the instant case to the Alexander case is obvious. The manifest intention of the Fair Employment Practices Act of Illinois is to assure that individuals would be afforded equal employment opportunity without discrimination because of race, color, religion, national origin or ancestry. (Ill. Rev. Stat. 1967, ch. 48, par. 851.) The arbitration in the instant case cannot preclude an individual from the statutory rights conferred upon him by the Fair Employment Practices Act of Illinois. Like title VII of the Civil Rights Act of 1964, the Illinois Fair Employment Practices Act provides a means of redress for an aggrieved person complaining of an unfair employment practice based upon racial discrimination. An arbitrator, whose duty is to interpret and apply the provisions of the collective bargaining agreement, cannot limit, prevent or ‘hind” an individual from exercising his statutory rights under the Fair Employment Practices Act. This is especially true in the instant case where the arbitrator was not interpreting or construing a non-discrimination clause in a collection bargaining agreement and did not mention the words “racial discrimination” in his report.

Under section 8(f) of the Act (Ill. Rev. Stat. 1967, ch. 48, par. 858 (f)), the hearing examiner determines whether the respondent has been engaged or is engaging in an unfair employment practice with respect to the complaint based upon a preponderance of the evidence. It is not the job of the reviewing court to re-weigh the evidence presented but to ascertain if the Commissions decision is supported by a preponderance of the evidence. (Chicago Transit Authority v. Fair Employment Practices Commission (1968), 103 Ill.App.2d 329.) It should be noted that the Circuit Court of St. Clair County found that the decision of the Commission in this case was arbitrary and unreasonable.

Many of the facts found by the hearing examiner are not in dispute by the appellants and appellee in this case. The inferences to be drawn from such facts are very much in dispute by the parties.

The hearing examiner found that Fenton, Baker and Schlemmer had been the only bidders on the mechanic job that opened up at Moss-American. The hearing examiner concluded:

“The opportunities afforded Baker and Fenton were limited to brief, casual conversations with them during the course of their work in the yard. Such was not the case with respect to Schlemmer. Not only was he interviewed by both Ferguson and McDaniel, separately, but Ferguson pursued the matter in behalf of Schlemmer by contacting Chartrand (former employer of Schlemmer) and requesting that Chartrand write a letter of recommendation for Schlemmer. Comparable efforts were not made in behalf of Baker or Fenton. Accordingly, the Hearing Examiner is persuaded by a clear preponderance of the evidence that Schlemmer was extended preferential treatment with respect to the prosecution of his bid.”

At the outset it is important to note that, in the proceedings before the hearing examiner, Fenton and Baker testified while Schlemmer did not testify. While appellee’s Director of Personnel McDaniel and Assistant Plant Superintendent Ferguson testified that they talked to Baker on the switch tie yard with regard to his bid, Baker denied that the conversation occurred. Likewise, Fenton denied that Ferguson and McDaniel interviewed him, even though Ferguson and McDaniel testified that they spoke with Fenton while Fenton was working on a moving locomotive. It would appear from the finding quoted above that the hearing examiner believed that Ferguson and McDaniel had spoken to Fenton and Baker.

The job application of Schlemmer reflected mechanical experience while the applications of Fenton and Baker did not. Ferguson testified that he had spoken to Chartrand, Schlemmer’s former employer, prior to the bidding and after the bidding. Ferguson and McDaniel stated they had spoken to Schlemmer separately and he had informed them of his prior mechanical experience. Ferguson discussed with Schlemmer’s former employer Chartrand his personal qualifications and qualities and requested that Chartrand confirm this recommendation by letter. Ferguson made arrangements for Schlemmer to pick up the letter and Schlemmer delivered the letter to Ferguson on or about March 26, 1968.

The hearing examiner was persuaded that Schlemmer was afforded preferential treatment and that the motivation for such treatment was racial. McDaniel testified that Mr. Credill Minter, the union president, had on several occasions accused the company of racial discrimination and had threatened to file charges. The substance of McDaniel’s testimony is as follows:

“Question: You said you suspected there would be charges, what was the basis of that?
Answer: [Mr. McDaniel] Mr. Minter had mentioned on several occasions that we were discriminating and if we did award a job to a white when a black had a bid on it he would bring charges of discrimination.
Question: When was that?
Answer: One time, it was maybe in the labor-management meeting, it was in the Winter of 67-68.
Question: Were those charges made before this job was posted for bids?
Answer: Yes, I believe they were.
Question: Did that statement in any way effect your determination of the best-qualified bidder in this instance?
Answer: It made us want to be more sure of ourselves, absolutely sure of ourselves before we made our decision.
Question: On that basis it was your judgment Mr. Schlemmer was the best qualified of the qualified bidders regardless of race?
Answer: Yes, sir.” (Emphasis added.)

Ferguson, McDaniel and Studebaker, the general superintendent, were aware of Minteds threats when they reviewed the qualifications of the three employees involved. Based upon McDaniel’s statement, the hearing examiner found as follows:

“In order to make sure of themselves, McDaniel and Ferguson investigated Schlemmer’s bid with greater intensity than they did the bids of either Baker or Fenton. Indeed, they pursued Schlemmer’s bid to the end that he emerged as the best qualified bidder, and the motivation for those extra efforts was the racial difference between Schlemmer on the one hand and Baker and Fenton on the other. When Ferguson and McDaniel were finished there was no. doubt that, on paper, the white man [Schlemmer] was better qualified than either of the Negro men [Baker and Fenton].”

As set forth in appellee’s brief, it feels that before any finding of racial discrimination could be made there had to be a preliminary finding that either Fenton or Baker was better qualified than Schlemmer for the mechanic job. This is the pivotpoint of the case. The hearing examiner was not concerned about whether Schlemmer was or was not better qualified for the job. But rather, what he was concerned about — indeed, what the Commission is empowered to be concerned about — is whether appellants were afforded a non-discriminatory opportunity to bid on the mechanic job without regard to their race. Clearly, Minter’s threat to bring charges of racial discrimination affected appellee’s determination of who was the best qualified bidder for the mechanic job. It appears that extra effort was made by the company to determine and document Schlemmer’s qualifications — documentation was done, not merely for the purpose of determining who was tire best qualified, but for the purpose of substantiating and justifying the award of the job to Schlemmer. Therefore, the Commission was not arbitrary and unreasonable in concluding that by a preponderance of the evidence appellee had knowingly afforded Schlemmer a superior or preferential opportunity to prosecute his bid, and the appellants were not afforded such opportunity.

The issue in the present case goes beyond the question of the black employees’ qualifications as mechanics. Rather, the question was whether the overall bidding procedure was discriminatory against appellants, depriving them of an equal opportunity for promotion. The past employment record of the white laborer was examined more than once while those of the black employees were not examined. The white employee was interviewed more than once in circumstances more conducive to eliciting qualifications for promotion, while the interviews with the black employees, if they occurred at all, were conducted while the employees were on the job. The white employee was even given assistance by the company in the bidding process, if only to protect the company’s legitimate interests. The Commission examined these differences and determined that, taken as a series of events and part of one transaction, they established a pattern of discrimination against the petitioners. This is supported by a preponderance of the evidence.

In reviewing an order of the Commission, the preponderance of the evidence standard must be adopted as required by the Fair Employment Practices Act. “[This is the only means of keeping] the agency within the jurisdictional * * * bounds guaranteed by the Constitution and statutes.” (Chicago Transit Authority v. Fair Employment Practices Commission, 103 Ill.App.2d 329, 339.) In Motorola, Inc. v. Illinois Fair Employment Practices Commission, 34 Ill.2d 266, the court rejected the proposed review standard “supported by competent evidence from which reasonable men could draw an inference * * (34 Ill.2d at 271.) However, the court in Motorola stated that it agreed with the circuit court that “the Commission must be allowed reasonable latitude in drawing inferences of discrimination from competent circumstantial evidence.” (34 Ill.2d at 275.) The finding of the court in Motorola was that “when all evidence in this case is considered, some suspicion might reasonably remain that the plaintiff had falsely recorded petitioner’s test score. Under the Fair Employment Practices Act, however, that suspicion is not enough. The Act provides that a determination sustaining a complaint shall be based upon a preponderance of the evidence.” (34 Ill.2d at 282.) By a preponderance of the evidence it is meant the greater weight of the evidence, not necessarily in numbers of witnesses, but in merit and worth that which has more evidence for it than against it is said to be proven by a preponderance. Preponderance of the evidence is sufficient if it inclines an impartial and reasonable mind to one side rather than the other. New York Life Insurance Co. v. Jennings, 61 Ga. 577, 6 S.E.2d 431.

Consequently, it can clearly be determined that the Commission had jurisdiction to hear the complaints of the appellants, Fenton and Baker, and also that the Commission and trial court were not bound by a prior decision of an arbitrator on the matters of seniority. Finally, the Commission was not arbitrary and unreasonable in concluding that, by the preponderance of the evidence, the appellee had knowingly afforded Schlemmer a superior or preferential opportunity to prosecute his bid, and that appellants were not afforded such opportunity, this being in violation of the Illinois Fair Employment Practices Act.

The judgment of the trial court of St. Clair County setting aside the finding of the Illinois Fair Employment Practices Commission is reversed and the order of the Commission of May 22, 1970, adopting the recommended order of the hearing examiner is reinstated.

Judgment reversed.

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