author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51526.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MORRIS FRIEDMAN, Appellee.

      Opinion filed March 28, 1980.

      William J. Scott, Attorney General, of Springfield (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, of counsel), for the People.

      Stephen M. Komie and Paul Bradley, of Chicago, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Morris Friedman, was convicted in a jury trial in the circuit court of Lake County of 10 counts of theft by deception (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1(b)) and one count of conspiracy to commit theft by deception (Ill. Rev. Stat. 1975, ch. 38, par. 8 — 2). The trial court sentenced defendant to concurrent terms of imprisonment of 3 1/3 to 10 years for five of the theft counts, to be served consecutively with concurrent 3 1/3-to 10-year terms of imprisonment for the remaining five counts. In addition, the trial court imposed fines amounting to $100,000. The appellate court reversed defendant’s conviction and remanded the cause for a new trial (65 Ill. App. 3d 613), holding that defendant had been denied the right to counsel of his choice when the circuit court denied defendant’s motion for substitution of counsel. We allowed the State’s petition for leave to appeal. Though we disagree with the appellate court’s holding that defendant was denied the right to counsel of his choice, we do agree that defendant’s conviction must be reversed for the reasons that follow.

Defendant, together with six other individuals, was indicted on May 24, 1976. This indictment arose out of defendant’s activities in connection with four “marketing corporations” which he had established. The appellate court opinion describes in detail the methods employed by defendant and Ted Moore, a codefendant in the trial of this cause, to induce the participation of unsophisticated investors in these enterprises. (65 Ill. App. 3d 613, 615.) Only those facts relevant to our opinion will be discussed.

After indictment in Lake County on May 24, 1976, and extradition from Arizona in July 1976, defendant appeared with retained counsel, William H. Wise, in the circuit court of Lake County on July 22, 1976, for purposes of arraignment and bond reduction. On this date, trial was set for October 6, 1976. Defendant’s motion to travel outside the State for business purposes was granted on August 6, 1976. The trial judge assigned to the case, Judge Doran, became ill in early October, the matter was continued, and Judge Doran was eventually replaced by Judge Krause. William H. Wise withdrew as counsel for defendant on October 19, 1976, citing certain irreconcilable differences as the basis. On October 22, 1976, Judge Krause ordered all pretrial motions to be filed on or before November 19, 1976, setting argument for November 29, 1976. He further advised all parties to expect trial in early January 1977. At this time the public defender was appointed to represent defendant. Defendant was then further advised that he could substitute retained counsel for appointed counsel if he later obtained funds, subject to the condition that retained counsel be ready for trial on the scheduled date.

On November 4, 1976, defendant, at that time residing in Arizona, wrote a letter to Judge Krause expressing his dissatisfaction with the public defender. Defendant stated that he had made repeated efforts to contact the public defender by telephone, stating further that these calls remained unanswered. Judge Krause responded to this correspondence on November 15, 1976. He informed defendant that if the preparation of his defense required that he return to Illinois, he should do so. On November 29, 1976, pretrial motions were argued with George Pease, public defender of Lake County, representing defendant. Pease noted for the record that his office had received correspondence from defendant complaining of numerous unsuccessful attempts to contact his office. Pease stated that a review of the telephone log revealed no such attempts and that he had written defendant advising him of the proper number to call. Judge Krause commented that if the preparation of the defense required defendant’s return, he would consider the State’s motion to restrict defendant’s travel. Judge Krause then set a final pretrial date of January 7, 1977, and a final trial date for January 17, 1977.

On January 17, 1977, the morning of trial, defendant presented the court with a letter from Raymond J. Smith, a private attorney. Smith stated that on January 14, 1977, defendant had contacted him concerning representation in the present case. Smith also stated that defendant had been informed that he could assume representation only if the present trial were continued to allow him to prepare the defense, and that he would presently be on trial in another matter until January 25, 1977. Smith’s letter further indicated that defendant had expressed dissatisfaction with his appointed counsel. At this time, the prosecution and the codefendant, Ted Moore, were both prepared to go to trial. Without discussing this matter with either the prosecution or codefendant, Judge Krause noted that this request for a continuance was not in the form of a motion, stating that if it were, it would be denied.

Defendant then stated that he had lost faith in his appointed counsel and objected to his representation. Defendant informed the court that he had discussed his appointed counsel’s advice to plead guilty with counsel from the Federal defender’s office who had been appointed to represent defendant on Federal mail fraud charges arising out of the same series of transactions. According to defendant, it was the opinion of his Federal counsel that defendant had an adequate defense to the Federal charges. On the basis of this opinion, related to defendant’s indictment for mail fraud, defendant stated that he lost faith in his public defender. The trial court then questioned Pease. Pease agreed that he would make the State prove each and every charge against defendant, and the court stated that he was defendant’s appointed counsel.

Defendant continued his objection to this representation, stating that he wished to waive representation by counsel altogether. The court instructed the public defender to be present to consult with defendant if needed. The court then informed defendant that he had an absolute right to discharge his attorney, but that the trial would begin that day. Defendant stated that, under those circumstances, he wished to be represented by the public defender. On the second day of trial, Gerald Werksman, a private attorney retained by defendant’s friends, joined the defense.

The appellate court, relying upon the fact that defendant had not previously been granted a continuance to secure private counsel, and the trial judge’s failure to determine the length of time that defendant’s chosen attorney would require to prepare the case, found that defendant had been denied the right to counsel of his own choosing.

By statute in Illinois, the decision to grant or to deny a motion for continuance lies in the sound discretion of the court (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 4(e)). In addition to the specific circumstances enumerated in the statute, the court may grant a continuance if the “interests of justice” so demand (Ill. Rev. Stat. 1973, ch. 38, pars. 114 — 4(d), (f)). Our continuance provisions are to be construed “to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial.” (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 4(h).) To accomplish this end, section 114 — 4(e) provides that all motions for continuance “shall be considered in light of the diligence shown on the part of the movant.” (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 4(e).) Our review of the trial court’s judgment in balancing these factors focuses initially on the question of whether the decision of the court amounts to an abuse of discretion. (People v. Solomon (1962), 24 Ill. 2d 586, 590.) The determination of whether the denial of a continuance violates a substantive right of the accused must turn on the particular facts of each case. People v. Lott (1977), 66 Ill. 2d 290, 297.

In the present case, defendant was informed by the court on October 22, 1976, approximately 2Vz months prior to trial, that he was free to substitute retained counsel, provided this substitution would not delay the trial. On the morning of trial, defendant presented the court with his first request to substitute counsel. Defendant’s counsel of choice indicated that he could not be ready by the scheduled trial date, stating that defendant had first contacted him three days prior to trial. The record is silent on other attempts by defendant, if any, to secure private counsel. We agree with the trial judge that this request was not timely.

Defendant seeks to avoid the effect of his lack of diligence by arguing that his decision to seek retained counsel on the eve of trial was motivated by his sudden loss of confidence in the public defender. Defendant contends that this loss of confidence was engendered by appointed counsel’s advice to plead guilty, measured against the opinion of defendant’s Federal counsel. We do not agree, however, that defendant’s lack of diligence should be excused. The trial court was first confronted with defendant’s dissatisfaction with appointed counsel in early November. Defendant claimed at that time that the public defender had not answered his numerous telephone calls. The public defender, however, informed the court that the telephone log in his office revealed no such attempts. The trial court was then presented with defendant’s claim of a sudden loss of faith in appointed counsel on the morning of trial. In response to this assertion, the trial court obtained the assurance of appointed counsel that he would vigorously represent defendant. Our review of the record also reveals that defendant informed the court at his sentencing hearing of his intent to enter a plea of guilty in the Federal proceeding, and we therefore doubt the sincerity of defendant’s claim that his loss of faith was prompted by his Federal defender’s opinion of the viability of his defense. Independent of defendant’s sincerity, we do not find that his expression of dissatisfaction, given the assurance of the public defender, amounted to an irreconcilable conflict which would require continuance of the trial.

Our cases have consistently held that the accused in a criminal case does indeed have the constitutional right to be represented by counsel of his own choosing. It is equally true, however, that this right may not be employed as a weapon to indefinitely thwart the administration of justice or to otherwise embarrass the effective prosecution of crime. (People v. Solomon (1962), 24 Ill. 2d 586, 590.) We hold that defendant was not denied the right to counsel of his own choosing under the circumstances of this case. The trial court could reasonably conclude that the request was made solely for the purpose of delay. (People v. Cross (1979), 77 Ill. 2d 396, 413.) Notwithstanding our disagreement with the appellate court on this point, other error requires reversal of defendant’s conviction.

In seeking to sustain the appellate court’s reversal of his conviction, defendant has argued that he was denied the right to a fair trial by the introduction of statements made in the course of a plea-related discussion. The record reveals that Stan Kaiser, an investigator for the office of the Attorney General, was called as a witness by the State and testified, in addition to matters not relevant to this appeal, that on June 21, 1976, he 'received a message at his office informing him that defendant had attempted to telephone him concerning a “very urgent” matter. Kaiser returned defendant’s call and testified that in the course of this conversation defendant had inquired about “making a deal” and that defendant stated, “If I’m convicted, I would rather go to a Federal prison as opposed to a State prison.” Defendant had been indicted for a Federal offense arising out of the same series of transactions. Kaiser testified that he informed defendant, “I have no control over that, talk to Mr. Rosenberg.” Defendant made no objection to the introduction of this testimony.

On cross-examination, Kaiser testified that defendant was aware of the fact that he was an investigator for the Attorney General’s office and that defendant was aware of the fact that he had been assigned to investigate defendant’s indictment. He also stated that he had approximately three conversations with defendant concerning his indictment prior to this call. Kaiser further testified that it was a practice of his office to answer all calls with the introduction, “Attorney General’s office” at the time defendant telephoned and left the message to contact him.

Defendant now argues that his appointed counsel’s failure to move for a mistrial on the basis of this testimony, characterizing this statement as a plea-related discussion, denied him effective assistance of counsel. Independent of the performance of his counsel, but also characterizing this statement as a plea discussion, defendant contends that our Rule 402(f) (58 Ill. 2d R. 402(f)) dictates reversal. The State argues that before a statement falls within the bounds of our rule, it must be made “as an integral part of a bona fide negotiation,” attended by a party who has authority to open plea discussion. The State suggests that our rule is inapplicable, characterizing the statement as an independent admission. The narrow issue is whether defendant’s unsolicited statement to an investigator of the Attorney General’s office is a plea-related discussion and therefore inadmissible.

Rule 402(f) provides:

“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” (58 Ill. 2d R. 402(f).)

Implicit in the promulgation of this rule was our recognition of the significance of the negotiation process to the administration of justice (see Santobello v. New York (1971), 409 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495) and our appreciation of the devastating effect of the introduction of plea-related statements in the trial of the accused (see Kercheval v. United States (1927), 274 U.S. 220, 71 L. Ed. 1009, 47 S. Ct. 582). The purpose of our rule is to encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enter plea discussion at his peril. (People v. Hill (1980), 78 Ill. 2d 465; People v. Steptore (1972), 51 Ill. 2d 208.) To accomplish this purpose, the boundaries of our rule must of necessity be delineated in relation to the reasonable expectations of the accused at the time the statement was made. In construing similar provisions of Rule 410 of the Federal Rules of Evidence and Rule 11(e)(6) of the Federal Rules of Criminal Procedure, the Federal courts have considered, first, whether the accused exhibited a subjective expectation to negotiate a plea, and, second, whether this expectation was reasonable under the totality of the objective circumstances, as relevant to the inquiry of whether a particular statement is plea related. (United States v. Robertson (5th Cir. 1978), 582 F.2d 1356, 1366.) Because of the substantial similarity in the purpose of the Federal rules, we find this analysis equally applicable to the determination of when a statement is plea related under our rule. The characterization of a statement as plea related, and therefore inadmissible under Rule 402(f), must necessarily turn on the facts of each case.

In the present case, defendant’s unsolicited statement was an offer to enter negotiation, stating generally the terms upon which defendant would be willing to bargain. We cannot agree with the State that an essential element of a plea discussion is the requirement that the statement sought to be excluded be made “as an integral part of a bona fide negotiation” with the appropriate parties in attendance. The fact that the party to whom this statement was made did not have the actual authority to enter negotiation is not, standing by itself, sufficient to render the statement admissible. (People v. Hill (1980), 78 Ill. 2d 465, 473.) Defendant could have reasonably assumed that Kaiser was an appropriate party to whom he could convey his offer to bargain. See United States v. Herman (5th Cir. 1977), 544 F.2d 791, 798.

Nor can we agree that the parties must be seated at the negotiating table before our rule applies. A statement made as an offer to enter negotiation is indistinguishable from a statement made at an advanced stage of the negotiation process in terms of its impact upon a jury. Statements related to either stage of this process are equally devastating in the trial of the accused. In determining whether a statement is plea related, we do not require “a preamble explicitly demarcating the beginning of plea discussions” (United States v. Herman (5th Cir. 1977), 544 F.2d 791, 797). But where a preamble is delivered, such as defendant’s inquiry related to “making a deal” in the present case, it cannot be ignored. (See United States v. Brooks (6th Cir. 1976), 536 F.2d 1137.) This is a clear indication of defendant’s intent to pursue plea negotiations. We find that defendant’s unsolicited statement was a plea-related discussion and therefore inadmissible under Rule 402(f).

While we do not question defendant’s subjective expectation to enter a plea-related discussion at the time the statement was made, nor the reasonableness of defendant’s expectations under the circumstances, we do agree with the State that there is a distinction between a statement made in the furtherance of a plea discussion and an otherwise independent admission which is not excluded by our rule. (See generally United States v. Shotwell Manufacturing Co. (7th Cir. 1961), 287 F.2d 667.) Where a defendant’s subjective expectations are not explicit, the objective circumstances surrounding defendant’s statement take precedence in evaluating defendant’s subsequent claim that the statement was plea related. Before a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State. Compare United States, v. Pantohan (9th Cir. 1979), 602 F.2d 855, United States v. Levy (2d Cir. 1978), 578 F.2d 896, and United States v. Robertson (5th Cir. 1978), 582 F.2d 1356, with United States v. Brooks (6th Cir. 1976), 536 F.2d 1137, and United States v. Smith (10th Cir. 1975), 525 F.2d 1017.

The State does not argue, nor would we agree, that the admission of this testimony was harmless or that the error was waived by defendant’s failure to object. This court, despite overwhelming evidence of the defendant’s guilt and despite his failure to object, has recognized the devastating effect of such testimony and held that the error was so prejudicial as to require reversal in People v. Hill (1980), 78 Ill. 2d 465, 474, and People v. Steptore (1972), 51 Ill. 2d 208. (Accord, United States v. Brooks (6th Cir. 1976), 536 F.2d 1137; United States v. Smith (10th Cir. 1975), 525 F.2d 1017; United States v. Ross (5th Cir. 1974), 493 F.2d 771.) We hold that defendant was denied the right to a fair trial by the introduction of a plea-related discussion in violation of Rule 402(f). We express no opinion on whether the failure of defendant’s appointed counsel to move for a mistrial after the introduction of this evidence was a denial of the effective assistance of counsel.

Because this cause will be remanded for a new trial, we will consider defendant’s argument concerning the admission of evidence related to defendant’s conviction of the offense of mail fraud. The State called a witness by the name of Sister Reed, a resident of the State of Texas, to testify concerning her business relationship with defendant. In addition to other matters, she testified to a telephone conversation that she had with defendant in April of 1975. She stated:

“*** I told Mr. Friedman that his distributor had just informed me that he had been recently convicted of *** mail fraud, of mail and wire fraud.
* * *
I said, I want to know if that is true; *** and he said, yes, that that was true, that he had just been convicted of, a few weeks prior, *** mail and wire fraud ***.
* * *
And I asked him *** just what were you convicted of that for, and he said that he was convicted of that for fronting the Freshness Corporation, for the organization, and he said, for the Mafia. And *** he told me that, he had been placed as the front for this organization, and that the Mafia had shown him how to make a lot of money, and that by the time he was 21 he had had a million dollars in cash, and that he was well on his way to making his second million.”

Defendant argues that the admission of that portion of this statement which refers to his conviction for the offense of mail fraud (18 U.S.C. sec. 1341 (1976)) was prejudicial error, contending that this evidence was irrelevant. The State argues that defendant’s statements, taken in their entirety, are probative of defendant’s intent at the time of the commission of this offense. In the alternative, the State contends that this evidence establishes defendant’s modus operandi of setting up “front” businesses to make “quick money.”

Our cases have held that evidence of extra-indictment offenses is generally inadmissible in the trial of the accused. The exception to this rule applies where the evidence of other crimes is independently relevant to show motive, intent, identity, or some other issue connected with the crime charged. (People v. Stadtman (1974), 59 Ill. 2d 229.) Our cases have also recognized that complex and involved financial crimes are of a type that lend themselves to proof by evidence of substantially similar crimes committed by the defendant. Evidence of substantially similar transactions is admissible to show specific intent or guilty knowledge. (Peouple v. Smith (1960), 18 Ill. 2d 547, 552; People v. Epping (1959), 17 Ill. 2d 557, 564.) This presumes, however, that the nderlying facts of the extra-indictment offense are established with sufficient clarity to demonstrate that they are in fact substantially similar.

In the present case, there is no evidence of the underlying facts of defendant’s prior conviction. Defendant’s practice of “fronting” corporations, standing alone, cannot serve to demonstrate that this prior crime was substantially similar to the offense at issue. Given the limited development of the underlying facts of this conviction, the probative value of this evidence is outweighed by the danger of undue prejudice. We therefore hold that the evidence related to defendant’s prior conviction, absent proof of its substantial similarity, is inadmissible.

We therefore affirm the judgment of the appellate court and remand the cause for a new trial.

Affirmed and remanded.


source: Caselaw Access Project

author: PER CURIAM: MR. JUSTICE CLARK,

license: Public Domain

text:
    (No. 52151.
    THE PEOPLE ex rel. THE CITY OF CANTON, Appellee, v. HARLAN E. CROUCH, Mayor, Appellant.

      Opinion filed March 28, 1980.

      CLARK and MORAN, JJ., dissenting.
    Richard A. Miller, of Chicago, for appellant.
    John J. McCarthy, of Canton (Kai Allen Nebel, Angelika Kuehn and Robert J. Best, of Boodell, Sears, Sugrue, Giambalvo & Crowley, and Jack B. Teplitz, of counsel), for appellee.
    Fred P. Bosselman, Tobin M. Richter and Linda A. Malone, of Chicago, and Craig A. Peterson, of Evanston (Ross, Hardies, O’Keefe, Babcock & Parsons, of counsel), for amicus curiae Karting Grand Prix, Ltd.
    Brian M. Memenoff, of Peoria, for amicus curiae city of Peoria.
   PER CURIAM:

The mayor of the city of Canton, Harlan E. Crouch, appeals from a judgment of the circuit court of Fulton County entered in a mandamus proceeding brought against the mayor by the city. The petition for a writ of mandamus was filed to compel the mayor to execute two general obligation bonds authorized by a municipal ordinance adopted July 5, 1978. The mayor, in a letter to the city council, refused to execute the bonds, stating that he could not because there was some doubt as to the “validity, interpretation, and constitutionality” of the enabling act, the Real Property Tax Increment Allocation Redevelopment Act (hereinafter the Act) (Ill. Rev. Stat. 1977, ch. 24, pars. 11 — 74.4—1 through 11 — 74.4—11). The circuit court did not agree and, based upon the pleadings, a stipulation of fact and multiple exhibits, denied the mayor’s motion for summary judgment and entered summary judgment in favor of the city. The mayor appealed to the appellate court and the cause was transferred to this court pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)).

The issue presented is whether the Act is constitutional. The Act became effective January 10, 1977. Its stated purpose is to eradicate blighted conditions and prevent new ones from occurring. The intent of the Act is to redevelop blighted areas so as to prevent the further deterioration of the tax bases of these areas and to remove the threat to the health, safety, morals and welfare of the public which blighted conditions present. (Ill. Rev. Stat. 1977, ch. 24, pars. 11 — 74.4—2(a), (b).) The General Assembly declared:

“ [I] ncremental tax revenues derived from the tax rates of various taxing districts in redevelopment project areas for the payment of redevelopment project costs is of benefit to said taxing districts for the reasons that taxing districts located in redevelopment project areas would not derive the benefits of an increased assessment base without the benefits of tax increment financing ***.” Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—2(c).

The procedure under the Act authorizes public hearings and, subsequently, the passage of an ordinance designating a redevelopment project area, as defined in section 11 — 74.4—3(h) (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—3(h)), and approving a redevelopment plan or project (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—5). Notice of the hearing is required to be given to property owners within the redevelopment area, both by publication and mailing. (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—6.) Once an ordinance authorizing a redevelopment plan and project and designating a redevelopment project area is adopted, the municipality is granted a panoply of powers to carry the plan into effect. For example, the municipality may: make and enter into all necessary or incidental contracts; acquire property by purchase, donation, lease or eminent domain; own, convey, lease, mortgage or otherwise dispose of property; demolish, remove, renovate, rehabilitate or construct any structure or building within a redevelopment project area; incur development costs, create a commission to exercise powers under the Act; and exercise any and all other powers necessary to effectuate the purposes of the Act. Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—4.

Additionally, the municipality may issue bonds, incur other obligations and pledge the full faith and credit of the municipality as well as the net revenues from, and taxes collected on, the redevelopment project area as collateral for repayment of its obligations. The obligations must have a maturity date not exceeding 20 years. The ordinance authorizing the obligations may provide that the obligations shall contain a recital that they are issued pursuant to the Act, which recital shall be conclusive evidence of their validity and of the regularity of their issuance. The debf incurred by a municipality pursuant to the Act is exclusive of any statutory limitation upon the indebtedness a taxing district may incur. Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—7.

Once an ordinance is passed which adopts tax increment allocation financing, the county clerk immediately thereafter determines the most recently ascertained equalized assessed value of each lot, block, tract or parcel of real property within the redevelopment project area. That value is designated the “initial equalized assessed value.” The county clerk adds these values together to reach the “total initial equalized assessed value” of all the taxable real property within the project area. The “total initial equalized assessed value” is then used to compute the rate per cent of tax with respect to every taxing district in the redevelopment project area in lieu of the current equalized assessed value of all taxable real property, for as long as tax increment allocation financing is in effect. (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—9.) Each year after the adoption of the ordinance, until redevelopment costs are paid, those real property taxes which are attributable to the initial equalized assessed value shall be paid by the taxpayers to the various taxing districts in the manner required by law in the absence of the adoption of tax increment allocation financing. (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—8(a).) That portion of taxes which is attributable to the current equalized assessed value over and above the initial equalized assessed value of all taxable property in the project area shall be allocated to and, when collected, shall be paid by the county collector to the municipal treasurer, who shall deposit the taxes into a special fund called the special tax allocation fund of the municipality for the purpose of paying redevelopment-project costs and obligations incurred in the payment thereof. (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—8(b).) Once all redevelopment costs and obligations are paid, all surplus funds remaining in the special tax allocation fund shall be paid by the municipal treasurer to the county collector for payment to the taxing districts in the redevelopment area.

The unique part of tax increment allocation financing is that the Act permits tax increments attributable to an increase in real property values to be paid from each taxing district which overlaps with the project area to the municipality. In the case at bar, the taxing districts affected are the County of Fulton, Canton Township, Canton Park District, the Spoon River College District, Canton Union School District No. 66 and the city of Canton. After the ordinance was adopted designating a downtown redeveopment project area and approving a redevelopment plan and project, the city authorized the sale of tax allocation bonds. It is these bonds which the mayor refuses to execute.

We have reviewed the briefs of the parties and the two amici, as well as the record on appeal. We agree with the mayor that the tax increment scheme is a “novel proposition,” but we are unable to say it violates any constitutional provision. Accordingly, we affirm.

The first contention raised by the mayor in essence is that the redevelopment of blighted private commercial areas within a municipality is not a public purpose with respect to municipalities, counties, townships, park districts, school districts and other limited-purpose units of government.

This court addressed this issue recently in People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62. That case was also a mandamus proceeding, brought by the city to compel the mayor to execute certain general obligation bonds and interest coupons for the purpose of acquiring a parcel of land for an urban development program. The court said:

“It is well established that the elimination of a blighted area is itself a public purpose, whether its characterization as blighted results from its physical condition or its unmarketability. (People ex rel. Gutknecht v. City of Chicago [1953], 414 Ill. 600.) This is no less true when the purpose of the municipality is the prevention, rather than elimination, of blight which has not yet begun or which, though begun, has not yet reached its apex.” (68 Ill. 2d 62, 73.)

Further, the court stated in Paley:

“[T] he fact that the statute provide [s] an impetus to economic development satisfie[s] the requirement of public purpose. *** [T] he city’s determination to promote the commercial rebirth of its downtown area is a public purpose satisfying the requirements of article VIII, section 1(a), and the due process clause [of the 1970 Constitution].” (68 Ill. 2d 62, 74.)

Thus, we conclude that, as to the city of Canton, the Act fulfills the constitutional requirement that municipal revenues spent to eliminate urban blight, as contemplated under this act, are spent for a legitimate public purpose.

We need to decide, however, whether tax revenues may be collected from the other taxing districts and expended by the city in order to carry out a redevelopment plan within the city. It is argued by the mayor that some of the other taxing districts, such as the Spoon River Junior College District and the Park District, may distribute their revenues for limited purposes only. Thus, argues the mayor, the revenues collected by the various special taxing districts may only be spent to advance the corporate purpose for which they were created and not to assist in redeveloping the city of Canton. We do not agree that a corporate purpose of each taxing district needs to be fulfilled in this case in order for the legislature to constitutionally authorize the elimination of urban blight. The single constitutional requirement in this regard is that public funds, property or credit be used only for public purposes. (Ill. Const. 1970, art. VIII, sec. 1(a); People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62,75; People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 354.) In Paley, we explicitly concluded that “the application of the public-purpose doctrine to sanction urban redevelopment can no longer be restricted to areas where crime, vacancy, or physical decay produce undesirable living conditions or imperil public health. Stimulation of commercial growth and removal of economic stagnation are also objectives which enhance the public weal. [Citations.] ” People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 74-75.

In People ex rel. Sanitary District v. Schlaeger (1945), 391 Ill. 310, an amendment to the election law was challenged. The amendment provided that counties, municipalities and taxing districts participating in and benefiting by elections, are required to apportion the costs of elections. After the sanitary district failed to pay its costs, the county collector deducted tax revenue intended for the district and credited the revenue to the county clerk as reimbursement for having paid the sanitary district’s costs. The sanitary district complained that the State lacked authority to deduct such amounts because they constituted an unlawful State tax for a local purpose and because the amendments embraced subject matter not expressed in the title or germane to the act amended. This court rejected both of the sanitary district’s arguments. In holding that the deductions for elections were for a valid public, as opposed to a local, purpose, it was said:

“The legislature may direct a municipality, as an agency of the State, to perform any governmental function of the State. In such case the municipality simply becomes an agency of the State. The power in all its aspects remains in the legislature, unchanged and unaffected by the delegation to the agent. It is delegated to smaller municipalities only that it may be more effectively exercised. [Citation.] ” (391 Ill. 314, 323-24.)

Moreover, it was there stated:

“It has been frequently held by this court that corporate purposes, within the meaning of the constitutional provisions here invoked, do not include functions which a municipal corporation performs in its governmental capacity as an agency of the State, although the performance of the duty will create a debt to be paid by local taxation. [Citations.]
* * *
*** The powers, duties and liabilities of municipal corporations, unless restrained by constitutional limits, are wholly under the control of the General Assembly. It may compel a municipal corporation to perform any duty which relates to the general welfare and security of the State, although the performance of that duty will create a debt to be paid by local taxation. [Citation.] ” (People ex rel. Sanitary District v. Schlaeger (1945), 391 Ill. 314, 324-25.)

(Accord, 16 McQuillin, Municipal Corporations sec. 44.18 n.6 (3d ed. 1979).) We conclude therefore that the enactment of the Act was for the purpose of promoting the public purpose of the State in reducing unemployment, relieving urban blight and increasing the general tax base.

Additionally, the mayor’s argument fails to consider the clear language of the 1970 Constitution permitting the use, among governmental units, of one another’s revenues. Article VII, section 10(a), provides:

“SECTION 10. INTERGOVERNMENTAL COOPERATION
(a) Units of local government and school districts may contract or otherwise associate among themselves, with the State, with other states and their units of local government and school districts, and with the United States to obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law or by ordinance. Units of local government and school districts may contract and otherwise associate with individuals, associations, and corporations in any manner not prohibited by law or by ordinance. Participating units of government may use their credit, revenues, and other resources to pay costs and to service debt related to intergovernmental activities.”

That this provision was intended to permit the multidistrict taxation scheme embraced by the Act in issue herein seems clear. Also, in light of the following exchange during the 1970 constitutional convention, it is clear that the drafters’ intent was to include school districts under the scheme:

“MR. KAMIN: Mr. Stahl and Mr. Wenum, I am having a little trouble with a potential ambiguity in the language. You have taken care, throughout the rest of the article, to keep school districts separate from units of local government — the definitional section, in particular; and my question is this: Does the language ‘among themselves’ mean that school districts can associate with only other school districts? Or does it mean that they can associate with any other unit of local government?
MR. WENUM: There is certainly no intention that that meaning be implied. The intent, indeed, is precisely the opposite. There are already examples in some municipalities where school districts and, for example, park districts cooperate in the utilization of land space, recreational facilities — indeed, enter into cooperative ventures in terms of summer programs where the park facilities are overcrowded and the school facilities are hardly used at all. We do not envision that kind of prohibition. Indeed, we would hope that school districts could cooperate like any other unit of government with any unit of government where that cooperation would be mutually beneficial to the units involved and to their people.
MR. KAMIN: Let me ask you this, then: In addition then, do you — you use in this article, I think, for the first time in the section, the words ‘unit of government.’ Your unit of government does not appear in the definitional section. I take it a school district is a unit of government.
MR. STAHL: Yes, although it is not a unit of local government.
MR. WENUM: It is a unit of government. Indeed, we anticipate because of what we are trying to do in this section that ‘unit of government’ spans any level — federal, state, local — so that this question of cooperation can be resolved at whatever levels are necessary to effect the best possible level of services to the people involved.” (4 Record of Proceedings, Sixth Illinois Constitutional Convention 3422.)

In Miller v. Covington Development Authority (Ky. 1976), 539 S.W.2d 1, the Supreme Court of Kentucky declared the Kentucky Tax Increment Act invalid for the reason that it violated the constitutional provision whereby tax revenues levied for the purpose of education “shall be appropriated to the common schools, and to no other purpose.” (Ky. Const. sec. 184.) The fact that our constitution provides for no such limitation on education revenues, and in fact encourages intergovernmental cooperation, compels us to reach the conclusion that the decision in Miller has no application in this case.

Finally, we think that public funds will not be used to finance private commercial development, as is argued by the mayor. The municipality may lease, mortgage or otherwise dispose of property within the redevelopment area. These acts could hardly be performed without the participation of private commercial developers. There is no constitutional prohibition forbidding such participation. As this court has repeatedly stated in this connection:

“ ‘[I] f the principal purpose and objective in a given enactment is public in nature, it does not matter that there will be an incidental benefit to private interests. (E.g., People ex rel. Adamowski v. Chicago Railroad Terminal Authority (1958), 14 Ill. 2d 230, 236; People ex rel. Gutknecht v. City of Chicago (1953), 414 Ill. 600, 611, 612; Poole v. City of Kankakee (1950), 406 Ill. 521, 530; Cremer v. Peoria Housing Authority (1948), 399 Ill. 579, 591-592.)
* * *
We have indicated that there is no constitutional prohibition against the use of public funds which inure to the benefit of private interests, so long as the money is utilized for a public purpose.’
The above is no more than a statement of a widely accepted rule of law. (See, e.g., Berman v. Parker (1954), 348 U.S. 26, 33-34, 99 L. Ed. 27, 38, 75 S. Ct. 98, 102-03; Baycol, Inc. v. Downtown Development Authority (Fla. 1975), 315 So. 2d 451, 455-56; State ex rel. Atkinson v. Planned Industrial Expansion Authority (Mo. 1975), 517 S.W.2d 36, 45; Levin v. Township Committee (1971), 57 N.J. 506, 543-45, 274 A.2d 1, 21-22; Yonkers Community Development Agency v. Morris (1975), 37 N.Y.2d 478, 482, 335 N.E.2d 327, 331.)” People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 75-76, quoting People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 355,359.

We hold therefore that the portion of the Act which permits revenues collected by various taxing districts, including school districts, to be paid over to the municipal treasurer for the purpose of paying the costs and servicing debt arising out of a redevelopment plan serves a valid public purpose and is constitutional.

The next several assignments of error raised by the mayor argue 'that the system of taxation established in the Act violated the Federal and State due process and equal protection guarantees of the taxpayers in the various taxing districts; that the system of taxation offends the uniformity clause of both constitutions; that it permits an improper delegation of legislative authority; that it is contrary to the separation of powers clause; and that it allows an impairment of the contracts the other taxing districts might enter into in the future.

Each of these contentions is based on the argument that the Act is defective because it permits tax revenues levied and collected within one taxing district to be paid over to another taxing district for its use. As we have previously discussed, our constitution specifically provides for sharing of credit, revenues, and other resources among units of government, including school districts. (Ill. Const. 1970, art. VII, sec. 10(a).) It is not the function of this court to assess the advisability of taxation schemes, or to make judgments concerning the relative difficulty of measuring tax increments in light of inflation and normal dips and rises in real property values. The social utility or feasibility of legislative decisions is not within the scope of our function. In this case, we are concerned only with the constitutionality of the act in question.

“ ‘[L] egislative bodies have very broad powers in establishing classifications defining the objects of taxation which will withstand constitutional attack so long as the classifications are reasonable. [Citations.] The legislative determination as to those persons who are to be taxed and those not taxed must not be arbitrary [citation], and the classification must bear some reasonable relationship to the object of the legislation [citation]. However, it is equally well settled that there is a presumption favoring the validity of classifications made by legislative bodies in taxing matters and that one who attacks them has the burden of proving such classifications to be arbitrary and unreasonable. ’ [Citations.] ” (Kerasotes Rialto Theater Corp. v. City of Peoria (1979), 77 Ill. 2d 491, 495-96, quoting Williams v. City of Chicago (1977), 66 Ill. 2d 423,432-33.)

Accord Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 35 L. Ed. 2d 351, 93 S. Ct. 1001; 16 McQuillin, Municipal Corporations sec. 44.20 (3 ed. 1979).

The General Assembly has determined that those tax revenues which are directly attributable to the increase in property values caused by a redevelopment project should be paid from the various taxing districts which are favorably affected by the project to the muncipality in which the project is located. The General Assembly has stated that, were it not for the redevelopment project, the taxing districts would not receive such revenue. (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74.4—2(c).) We think it is reasonable for the increments to be used to retire the debt which was incurred to implement the redevelopment plan.

The mayor argues that taxpayers residing in parts of a taxing district outside the area of the municipality will be taxed at a greater rate as a result of the Act, and that they are taxed differently than taxpayers residing in districts which are not participating in a tax increment allocation plan. The mayor asserts that such classifications are arbitrary and thus violative of the due process and equal protection clauses. We disagree. The classifications are based on the need, perceived by the General Assembly, to eliminate or prevent urban blight. Within each taxing district, only those revenues which can reasonably be found to have been raised by the implementation of the redevelopment plan can be deposited in the special tax allocation fund. Thus, only those taxing districts, and within each taxing district only that part of it which has enjoyed an increase in revenues as a result of redevelopment, will be required to turn over revenue to the municipality. We do not think the mayor has carried the burden of proving the classifications to be either arbitrary or unreasonable; he has not negated every conceivable basis which might support the classifications. (Continental Illinois National Bank v. Zagel (1979), 78 Ill. 2d 387; Berry v. Costello (1976), 62 Ill. 2d 342, 345.) The Act does not offend the due process or the equal protection clauses.

The same may be said for the mayor’s argument that the Act violates the uniformity clause. Those taxpayers who will directly benefit from redevelopment will pay taxes to the municipality while those further removed physically from the redevelopment area will have fewer, if any, tax revenues paid over to the municipality. We are unable to say that such a scheme is arbitrary or unreasonable.

The mayor and one amicus next urge reversal because the Act is vague and indefinite and thus constitutes an improper delegation of legislative authority to the municipality empowered to enforce the Act. In support of this charge, the mayor asserts that no standards are laid down to guide the municipality in exercising the various powers it possesses under the Act. The mayor also argues that the separation of powers clause of article II, section 1, of the Illinois Constitution is violated by a grant of executive and legislative authority to the municipality under the Act; moreover, that the vague and indefinite features of the Act represent a denial of due process; and that the Act is special, not general, legislation.

These arguments lack merit. The mayor states that the Act does not set standards as to prices the municipality should pay to acquire property or as to prices or rents the municipality should receive for the sale or lease of redeveloped property. The mayor suggests other areas where discretion is vested in the municipality, and characterizes these grants of discretion as unconstitutional. We do not agree because the General Assembly sufficiently defines the purposes for which these discretionary grants are to apply. That is, the Act provides that the powers delegated to the municipality are to be used specifically to eliminate or prevent urban blight. Moreover, the Act permits the municipality to exercise its unquestioned powers of eminent domain to acquire property, as well as permitting the development and disposition of property, general powers which have been upheld by this court several times in the past. See e. g., Coryn v. City of Moline (1978), 71 Ill. 2d 194 (special services act (Ill. Rev. Stat. 1977, ch. 120, par. 1301 et seq.)); People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347 (Industrial Project Revenue Bond Act (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 74—1 et seq.)); People ex rel. Gutknecht v. City of Chicago (1953), 414 Ill. 600 (amendments to the Blighted Areas Redevelopment Act of 1947 (Ill. Rev. Stat. 1949, ch. 6714, par. 63 et seq.)); People ex rel. Tuohy v. City of Chicago (1948), 399 Ill. 551 (Blighted Areas Redevelopment Act of 1947 (Ill. Rev. Stat. 1947, ch. 6714, par. 63 et seq.)); State grant act (Ill. Rev. Stat. 1947, ch. 6714, par. 53 et seq.)); rehousing act (Ill. Rev. Stat. 1947, ch. 6714, par. 92 et seq.)).

Thus the Act sufficiently identifies the harm to be prevented (urban blight) and the general means available to the municipality (and the commission it may establish) to prevent the harm (e.g., eminent domain, issuance of bonds, sale or lease of property). (See Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372 (where a test was laid down which may be used to determine whether adequate standards were provided to administrative agencies so as to assure legislative conformance with the delegation of powers doctrine).) Therefore, the powers granted to the municipality under the Act, while necessarily stated in general terms (Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 580), are, because they have been exercised in the past by municipalities and because they are inexorably connected with and restricted to the clearly stated legislative goal of relieving urban blight, not void for vagueness, indefiniteness and uncertainty.

F or the same reasons we think the mayor’s contention that the Act violates the separation of powers clause must fail. The General Assembly has empowered the municipality to do a variety of acts, all designed to accomplish one legislatively directed object. The municipality may execute the objective of the General Assembly, but it must stay within the bounds of the Act. It may only perform those acts, and in the manner provided for, expressly contained in the Act. We think sufficiently clear criteria are laid down for the municipality to do this, and we reject the mayor’s argument that any unauthorized power has been delegated to the municipality.

A law is general instead of special legislation if it operates uniformly throughout the State in all localities on all persons in like circumstances and conditions. (People ex rel. Hanrahan v. Caliendo (1971), 50 Ill. 2d 72, 85.) In the foregoing case, the validity of the Urban Transportation District Act (Ill. Rev. Stat. 1977, ch. 111 2/3, pars. 501 through 518) was in issue. In response to the assertion that that act constituted a special or local law in violation of article IV, section 22, of the 1870 Constitution, this court said: “By its terms the Act applies to all municipalities of the State ‘in which inadequate or outmoded public transportation facilities and/or services exist. ’ Ill. Rev. Stat. 1969, ch. 111 2/3, par. 502.” (People ex rel. Hanrahan v. Caliendo (1971), 50 Ill. 2d 72, 85.) Thus, that act was general in nature. The same conclusion is inescapable in this case. Any municipality may choose to participate in tax increment allocation financing. The Act operates uniformly throughout the State with regard to all municipalities. The Act is a general law.

The mayor next argues that the Act is unconstitutional in that is impairs the obligation of the various taxing districts’ contracts in violation of article I, section 16, and article XIII, section 5, of the Illinois Constitution of 1970. Those sections provide:

“No *** law impairing the obligation of contracts *** shall be passed.” Ill. Const. 1970, art. I, sec. 16.
“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” (Ill. Const. 1970, art. XIII, sec. 5.)

The mayor points out that sometime in the future the various taxing districts may be unable to meet their obligations and that the Act may contribute to that result. He does not explain exactly how the Act would do so, however. In an analogous context it was said: “Factual and legal decisions that may thereafter arise are not now present for decision.” (Mahin v. Baltis (1966), 34 Ill. 2d 413, 421 (constitutionality of an amendment to the Chicago sanitary district act (Ill. Rev. Stat. 1963, ch. 42, par. 323.30a)). We need not decide this question.

The mayor’s penultimate ground for reversal is that specific recommendations for change made by the Governor exceeded the scope of the amendatory veto power granted in article IV, section 9(e), of the 1970 Constitution. The recommendations for change, all of which were accepted by the General Assemby, related to, inter alia: the requirement of an estimated completion date for any redevelopment plan; the requirement of an ordinance to authorize each disposition of property; a section requiring the disclosure by municipal officers of any interest in property affected by the redevelopment plan; and the requirement that each taxing district receive notice by mail and publication of all changes in a redevelopment plan, project or area.

The amendatory veto power of the Governor has arisen in other cases decided by this court. While the power has not been given precise boundaries in these cases, it is possible to say that the power does not extend to the point where the Governor may make a substitution of completely new bills. (People ex rel. Klinger v. Howlett (1972), 50 Ill. 2d 242, 249.) Nor does it extend to the point that it may change the fundamental purpose of the legislation, nor make substantial or expansive changes in the legislation. (Continental Illinois National Bank v. Zagel (1979), 78 Ill. 2d 387.) The constitutional provision authorizes “specific recommendations for change.” (Ill. Const. 1970, art. IV, sec. 9(e).) It is clear that the power encompasses more than mere proofreading to correct technical errors. It therefore becomes a question of guided discretion to judge whether the changes are less than fundamental alterations but more than technical corrections. We think the changes made in the act at bar fall within that middle area. They were intended to improve the bill in material ways, yet not to alter its essential purpose and intent. The changes constituted minor enhancements which spoke to the clarity, fairness and practical requirements of the Act. They did not exceed the scope of the Governor’s amendatory veto power.

Finally, the mayor urges that the Act expressly amended various laws without setting forth completely the sections amended, in contravention to article IV, section 8(d), of the 1970 Constitution. Section 8(d) provides: “A bill expressly amending a law shall set forth completely the sections amended.”

The mayor argues that the Act amends legislation in six instances without referring to what legislative authority exists already or how the Act is amending that authority. In the first instance, the mayor argues that if elimination of urban blight is a corporate or public purpose of counties, townships, school districts and other units of government, the acts creating such units should be amended to so provide. As we have previously held herein, eradicating urban blight is a valid public purpose of the State which the General Assembly may attempt to accomplish by delegating, to a limited degree, some of its power to local units of government. While each unit of government may have its own local and corporate purposes the public purposes of the State may sometimes be carried out through the local units of government. No amendment is needed to explicate this principle.

Another instance cited by the mayor is set forth in the official text of the Act. That instance relates to the requirement that tax rates be set exclusively on the basis of equalized assessed values. The text of the act here in question does expressly amend the applicable section of the Revenue Act of 1939 to allow for the effect the instant act has upon the Revenue Act. (1976 Ill. Laws 1895.) The other instances which the mayor argues require that amended sections be set forth completely involve: the presumption that bonds issued by the municipality under the Act are valid; the potential pledges of the full faith and credit of the municipality; a reference to alternative statutory methods of issuing obligations; and an exclusion from debt-limitation levels set by other legislation. In any event, we think that the remaining instances raised by the mayor properly are within the following rule:

“Where a law is complete in itself, it is valid although its effect may be to repeal, modify, or amend existing laws by implication. [Citations.] It is not necessary, when a new act is passed, that all prior acts modified by it by implication shall be re-enacted and published at length. [Citation.] ” Jordan v. Metropolitan Sanitary District (1958), 15 Ill. 2d 369, 378.

Accord: People ex rel. Sanitary District v. Schlaeger (1945), 391 Ill. 314, 329; People ex rel. Kucharski v. Hiering (1971), 49 Ill. 2d 304, 307; United Private Detective & Security Association v. City of Chicago (1976), 62 Ill. 2d 506, 516; 1A Sutherland, Statutes and Statutory Construction secs. 22.13, 22.20, 22.21 (4th ed. 1972 & Supp. 1979).

One of the amicus briefs filed in this cause argues that summary judgment was improperly granted because several issues of fact exist in this case. These factual questions relate to the terms of the bonds to be issued by the municipality, the bonds’ issuance date and value, and the contracts of the various taxing districts which might allegedly be impaired. In light of our resolution of the issues involved herein, we do not consider these questions to be material to the constitutionality of the Act.

In sum, the elimination of urban blight in the city of Canton is within the ambit of the public-purpose doctrine. The taxation scheme contemplated under the Real Property Tax Increment Allocation Redevelopment Act does not deny taxpayers in the various taxing districts due process or equal protection of the laws. The scheme of taxation is uniform as applied to all persons within a similar classification. The powers delegated by the General Assembly to the municipality are properly clear and definite. There is no impairment of obligations of contracts under the facts presented here. The Governor did not exceed his amendatory authority, and, the Act is not an amendatory act as that term is contemplated within article IV, section 8(d), of the Constitution. The mayor therefore erroneously refused to execute the bonds; “• ‘the signature of the mayor to these instruments is purely a ministerial act. Mandamus is an appropriate form of action under these circumstances.’ ” (People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 78, quoting People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 353.) The judgment of the circuit court of Fulton County, issuing a writ of mandamus directing the mayor to execute the bonds, is affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

dissenting:

I respectfully dissent from the majority opinion. I think that the taxation scheme contemplated by the Act violates the uniformity clause of the Illinois Constitution. Under the terms of the Act, once an ordinance is passed by a municipality authorizing tax increment allocation financing, then the ad valorem taxes, if any, arising from the levies upon taxable real property in the project area by the taxing districts will be paid to the county treasurer. “That portion, if any, of such taxes which is attributable to the increase” in real property values over and above the last real property valuation prior to passage of the ordinance is withdrawn from the revenues of each taxing district in the project area and paid to the municipal treasurer for deposit in a special tax allocation fund. (Ill. Rev. Stat. 1977, ch. 24, par. 11-74.4-8.) Thus, before any monies are ever paid to any of the various taxing districts, the county clerk is required to deduct a portion of the revenues and send it to the municipal treasurer to retire the costs and obligations incurred by the municipality in redeveloping an area within that municipality. In my opinion the Act authorizes an invasion of the fiscal integrity of the various taxing districts and is in direct conflict with the opinions of this court which hold that “[t]he prohibition of the constitution is that one municipality may not force another to levy taxes to pay a debt which it did not incur or for the corporate purpose of the other municipality.” (Board of Library Directors v. City of Lake Forest (1959), 17 Ill. 2d 277, 286; Flynn v. Kucharski (1970), 45 Ill. 2d 211, 219.) Even assuming, arguendo, that since the elimination of urban blight serves a public purpose of the State, it need not serve a corporate purpose of each taxing district, it cannot be denied that the various taxing districts are required to levy taxes to pay debts they did not incur.

A taxing statute enjoys a strong presumption of validity (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432-33), and one attacking it must negate every conceivable basis which might support it (Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 364, 35 L. Ed. 2d 351, 358, 93 S. Ct. 1001, 1006). Still in all, there are limits to the taxing power, which limits the judiciary must enforce. A scheme of taxation which permits the compulsory diversion of taxes levied and collected by one municipality to another municipality is constitutionally infirm. (Flynn v. Kucharski (1970), 45 Ill. 2d 211, 219-20.) In Flynn v. Kucharski the act in question permitted taxpayers in Cook County to pay their real property taxes directly to their township collector rather than the county collector. The township collector could retain 2% of the revenues collected as a fee before remitting the remainder to the county collector. The result, it was held, was that the uniformity clause of the Illinois Constitution was violated (Ill. Const. 1870, art. IX, secs. 9, 10; Ill. Const. 1970, art. IX, sec. 4) because a portion of the taxes paid by the taxpayers of Cook County was being diverted to the township for the benefit of the township’s taxpayers. That decision was based on the ground that taxes of the county taxpayers were diverted to the use of the specialized corporate purposes of the townships. My disagreement with the majority opinion stems from the fact that the Act permits a tax to be levied and collected by one unit of government which inures to the benefit of another unit of government. The effect of such revenue diversion is that the taxing districts lose revenue which, while perhaps caused by the redevelopment project, was still levied and collected under the aegis of, and presumably for the exclusive use of, the particular taxing districts. There is no rational basis why an increase in revenue of a taxing district, regardless of the cause for it, should be commandeered and given to another taxing district. The lack of a rational basis becomes even clearer when it is realized that revenues of a large taxing district, such as a county, covering territory far in excess of the municipal boundaries, must be turned over to the municipal treasurer to pay for the elimination of blight within a city. Thus revenue raised for use by the entire county, albeit as a result of urban re development, is not permitted to be used by the county but must be paid to reduce the debt of the municipality. The taxpayers in the county are therefore being taxed in order to pay the debts of the municipality. This results in “a diversion, in the process of collection, and as part of the statutory machinery of collection, of taxes paid by the taxpayers of one governmental unit for the benefit of the taxpayers of another governmental unit.” (Flynn v. Kucharski (1970), 45 Ill. 2d 211, 219.) The Act thereby offends the uniformity provision of article IX, section 4(a), of the 1970 Constitution.

Finally, it is argued by the city that the sharing of revenue among units of government is expressly authorized by the 1970 Illinois Constitution, article VII, section 10(a). That section provides:

“SECTION 10. INTERGOVERNMENTAL COOPERATION
(a) Units of local government and school districts may contract or otherwise associate among themselves, with the State, with other states and their units of local government and school districts, and with the United States to obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law or by ordinance. Units of local government and school districts may contract and otherwise associate with individuals, associations, and corporations in any manner not prohibited by law or by ordinance. Participating units of government may use their credit, revenues, and other resources to pay costs and to service debt related to intergovernmental activities.”

While this constitutional provision permits revenue sharing among governmental units, that function is quite separate from what is embraced under the act in question here. There is a fundamental difference between the levying and collection of tax revenues by one district for the use of another taxing district, which is involved here, and the voluntary distribution or expenditure of tax revenues, as is contemplated by the constitutional provision authorizing an intergovernmental project designed for the mutual benefit of all units participating. The type of revenue sharing envisioned by the drafters of the Constitution is described in the official explanation of section 10:

“This section is new. It permits government at all levels to cooperate in working out common problems. Thus, one local government can contract with another government or private parties to share services and divide the costs equitably.” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2730, cited in Anderson & Lousin, From Bone Gap to Chicago: A History of the Local Government Article of the 1970 Illinois Constitution, 9 J. Mar. J. Prac. & Proc. 698, 794 (1976).)

The sharing of revenue between the State and local governmental units has been approvingly referred to by this court in the past (Goldstein v. Rosewell (1976), 65 Ill. 2d 325, 329), and I know of no reason to assume a different position toward revenue sharing of units of local government inter se. It is quite another matter, however, for the tax revenues generated within one taxing district to be compulsorily diverted to another taxing district, without the consent of the taxpayers in the first taxing district. While my disagreement with the majority opinion is limited to the ground that the Act violates the uniformity clause, as did the act in Flynn v. Kucharski, I note that this legislation also raises serious questions as to the deprivation of the due process and equal protection rights of the taxpayers in the various taxing districts. See Comment, The Constitutionality of the Exercise of Extraterritorial Powers By Municipalities, 45 U. Chi. L. Rev. 151 (1977).

MR. JUSTICE MORAN joins in this dissent.


author: MR. JUSTICE CLARK

text:
    (No. 52304.
    BERNARD I. SOMMER et al., Appellants, v. THE VILLAGE OF GLENVIEW et al., Appellees.

      Opinion filed March 28, 1980.

      Joseph A. Morris, of Chicago (Rothschild, Barry & Myers, of counsel), for appellants.
    Zachary D. Ford, of Glenview, for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The plaintiffs, Bernard I. Sommer, Mary Jane Lee and Julia S. Sommer, filed a complaint for a declaratory judgment and a petition for a writ of mandamus in the circuit court of Cook County on March 23, 1979. The relief sought by the plaintiffs was, inter alia, a writ of mandamus commanding the defendants, the village of Glenview, the board of trustees, the village clerk and the village manager, to present a proposition to the voters of the village which, if passed, would lower the maximum property tax rate applicable to the next taxes to be extended. The plaintiffs also requested the court to enter a judgment declaring that section 162a of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 643a) created a duty on the part of the defendants to present the tax-rate proposition to the voters of the village. The plaintiffs and defendants filed motions for summary judgment. The circuit court, after a hearing, dismissed the plaintiffs’ petition for a writ of mandamus, granted the defendants’ motion for summary judgment, denied the plaintiffs’ motion for summary judgment, and entered judgment for the defendants. The plaintiffs filed a notice of appeal directly to this court under Rule 302(a) (73 Ill. 2d R. 302(a)). The defendants thereafter filed a motion with this court to dismiss the appeal or to transfer the cause to the appellate court. The plaintiffs filed a response asking the court to permit the appeal under Rule 302(a), or, in the alternative, as a matter in which the public interest requires prompt adjudication, pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)). We have taken the motion to dismiss under advisement with this appeal.

There are no disputed questions of fact. The village is a home rule unit under the terms of article VII, section 6, of the 1970 Constitution. On March 16, 1979, more than 30 days prior to the next general election in the village, petitions bearing the signatures of 1,349 duly qualified voters were filed with the village clerk. The petitions requested the village’s governing board to present to the voters at the next general election to be held on April 17, 1979, the following question:

“Shall the maximum tax rate for the general corporate fund of the Village of Glenview, Illinois, be established at .4337 percent on the equalized assessed value instead of .5783 percent, the maximum rate otherwise applicable to the next taxes to be extended?”

At a meeting of the village board held March 19, 1979, the trustees voted not to place the referendum proposition on the ballot for the general election to be conducted on April 17, 1979.

The first question we consider is whether the appeal is properly brought under Rule 302(a). Rule 302(a) states:

“Rule 302. Direct Appeals to the Supreme Court
(a) Cases Directly Appealable. Appeals from final judgments of circuit courts shall be taken directly to the Supreme Court (1) in cases in which a statute of the United States or of this State has been held invalid,***.” (73 Ill. 2d R. 302(a).)

The defendants assert that the circuit court, in holding section 162a to be inapplicable to home rule units of government, did not decide its constitutionality. We do not agree. At the hearing on the motions for summary judgment, the circuit court stated that the section “constitutes an impermissible limitation on the powers to tax delegated to the local Home Rule municipalities by the 1970 Constitution.” The court’s order repeated the conclusion that section 162a constituted “an impermissible limitation on the constitutional powers of the Village of Glenview to tax as delegated to home rule municipalities by the 1970 Constitution” and added, “said Village is not bound by said section.” We think the foregoing signifies that the trial court held that section 162a, as applied to a home rule unit, is unconstitutional. In Garcia v. Tully (1978), 72 Ill. 2d 1, 7, in an analogous setting, we said:

“[I] t appears from the opinion and order of the circuit court that the order dissolving the injunction rests upon the finding that section 104 of the Revenue Act of 1939 is unconstitutional. Under these circumstances, direct appeal under Rule 302(a) is appropriate, and defendants’ motion to dismiss the appeal is denied.” (72 Ill. 2d 1, 7.)

By holding section 162a inapplicable to home rule units the circuit court necessarily based its decision on the ground that there is a conflict between that section and the powers granted to home rule units under the 1970 Constitution. The motion to dismiss the appeal is denied.

The next inquiry is whether section 162a of the Revenue Act of 1939, as applied to home rule units, is unconstitutional. Section 162a provides in pertinent part:

“(2) The question of establishing a tax rate limit either higher or lower than that otherwise applicable to the next taxes to be extended may be presented to the legal voters of any taxing district at any time by the corporate authorities of the taxing district on their own motion at any regular election or at any special election called for that purpose. The question of establishing a tax rate limit lower than that otherwise applicable shall be presented to the voters of any taxing district upon the receipt by such corporate authorities, not less than 30 days before the next regular election for officers of such taxing district of a petition signed by not fewer than 5% of the legal voters in such taxing district, which percentage shall be determined on the basis of the number of votes cast at the last general election preceding the filing of such petition or 1,000 legal voters in such taxing district whichever is less, specifying the tax rate to be submitted; and such proposition shall be submitted to the voters at the next regular election for officers for such taxing district; provided that if no such election is required to be held at intervals of not more than 2 years, such proposition shall be submitted as a special election to be called by the corporate authorities of such district, which election shall be set for a day not less than 90 days nor more than 120 days following the filing of such petition. In case no general election is held in such a taxing district, such petition shall be signed by not fewer than 5% of the registered voters in such district or 1000 such registered voters, whichever is less.
**#
If a majority of all ballots cast on such proposition shall be in favor of the proposition, the tax rate limit so established shall become effective with the levy next following the election and it shall be the duty of the county clerk to reduce, if necessary, the amount of any taxes levied thererafter, in such a manner as to give effect to the rate limit so established unless and until the rate so established is changed as provided by law; provided that nothing in this Section shall be construed as precluding the extension of taxes at rates less than that authorized by such election. Provided, further, that the proposition to authorize either a higher or lower tax rate limitation than that otherwise applicable may, in the discretion of the corporate authorities, when acting on their own motion, or the petitioners requesting a vote on such proposition, be restricted in effect to the tax levy of a given year or series of years, the rate limitation thereafter to revert to that applicable at the time of the referendum. If more than one proposition shall be submitted for any one fund of any taxing district of any one election and majority of votes cast on any one or more of such propositions shall be in favor thereof, only the tax rate limit authorized in the proposition receiving the highest number of favorable votes shall become effective; provided that propositions to establish tax rate limits either higher or lower than those otherwise applicable shall not be submitted more often than once in any one year.
No proposition to increase or decrease a tax rate limit under the referendum provisions of this subsection (2), and where there is no other applicable statute for an increase or decrease in a tax rate limit by referendum or otherwise, shall increase or decrease such tax rate limit in effect on the date of the referendum by more than 25%.” (Ill. Rev. Stat. 1977, ch. 120, par. 643a.)

There have been two minor amendments to this section since 1939, one of which was passed subsequent to the adoption of the 1970 Constitution. These amendments, however, did not alter the substance of the statute. The post-Constitution change, though passed by a three-fifths majority in each house of the General Assembly, could in no way be considered to be an express restriction of home rule powers. (See Rozner v. Korshak (1973), 55 Ill. 2d 430, 435.) Therefore we must view section 162a as legislation existing prior to the adoption of the 1970 Constitution. Article VII, section 6(a), of the 1970 Constitution provides in part: “Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power *** to tax ***.” The plaintiffs argue that section 162a does not conflict with home rule taxing powers because it merely authorizes a popular, not a legislative, check on home rule powers, in the form of a referendum. In Kanellos v. County of Cook (1972), 53 Ill. 2d 161, an analogous issue was presented. The Cook County Board adopted a resolution providing for the issuance of $10 million in general obligation bonds without prior referendum approval of the voters of Cook County. The plaintiff therein argued that a referendum was required as a condition precedent under both a constitutional provision and a preexisting statute. This court held that the Constitution did not require a referendum for the issuance of bonds by a home rule county. (53 Ill. 2d 161, 165.) The court also held that the pre-Constitution statute, which imposed a referendum requirement on counties, conflicted with section 9 of the Transition Schedule of the 1970 Constitution. Section 9 states in part: “All laws, ordinances, regulations and rules of court not contrary to, or inconsistent with, the provisions of [the 1970] Constitution shall remain in force, until they shall expire by their own limitation or shall be altered or repealed pursuant to [the 1970] Constitution.” Ill. Const. 1970 Transition Schedule sec. 9.

The court went on to explain why the statute did not apply to home rule units:

“The concept of home rule adopted under the provisions of the 1970 constitution was designed to drastically alter the relationship which previously existed between local and State government. Formerly, the actions of local governmental units were limited to those powers which were expressly authorized, implied or essential in carrying out the legislature’s grant of authority. Under the home-rule provisions of the 1970 constitution, however, the power of the General Assembly to limit the actions of home-rule units has been circumscribed and home-rule units have been constitutionally delegated greater autonomy in the determination of their government and affairs. To accomplish this independence the constitution conferred substantial powers upon home-rule units subject only to those restrictions imposed or authorized therein.
We therefore hold that this statute is inapplicable as applied to a home-rule county. It was enacted prior to and not in anticipation of the constitution of 1970 which introduced the concepts of home rule and the related limitation of sections 6(g) and 6(h). Such considerations were totally foreign in the contemplation of legislation adopted prior to the 1970 constitution. The statute is therefore inconsistent with the provisions of section 6(g) and the Transition Schedule. (See Helman and Whalen, Constitutional Commentary, S.H.A. Const. of 1970, art. VII, sec. 6, p. 26.) While a referendum requirement may be imposed upon a home-rule county to regulate a ‘power or function not exercised or performed by the State,’ such restriction must be specifically enacted by the General Assembly with the requisite legislative majority.” (53 Ill. 2d 161, 166-67.)

The plaintiffs argue that since the court in Kanellos held that a pre-1970 statutory referendum requirement was an inapplicable condition precedent to the issuance of bonds by home rule units, Kanellos represents a distinguishable situation from the instant case. In Kanellos, continues the argument, a referendum constituted a limitation on home rule power, whereas in the instant case a referendum merely gauges the popular will to lower taxes and is not a self-executing restraint or limitation on the home rule unit’s power to tax. This argument must fail, however, when it is considered that the language of section 162a commands that “[t] he question of establishing a tax rate limit lower than that otherwise applicable shall be presented to the voters of any taxing district upon the receipt by such corporate authorities, not less than 30 days before the next regular election,” of petitions containing the requisite number of signatures. (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 120, par. 643a(2).) Thus, while a referendum is not required before a home rule unit may lower the tax rate limit, once the formal requirements are met, as here, the statute does require that a referendum be conducted. We hold, therefore, that section 162a is an unconstitutional limitation on home rule units.

The plaintiffs’ argument that a referendum provides a popular, and not a legislative, check upon a home rule unit’s taxing power is not entirely incorrect. It should be emphasized that our holding is not a restraint upon the constitutionally guaranteed right of the people “to make known their opinions to their representatives ***.” (Ill. Const. 1970, art. I, sec. 5.) Our holding is simply that this statute, as the trial court stated, “constitutes an impermissible limitation of the powers to tax delegated to the local Home Rule municipalities by the 1970 Constitution.” The home rule units themselves are of course free to adopt ordinances authorizing referenda to adjust tax rate limits. Also, the General Assembly in the exercise of its power to pass laws by a three-fifths majority in each house, denying or limiting the power to tax of a home rule unit (Ill. Const. 1970, art. VII, sec. 6(g)), may pass legislation authorizing referenda to lower or raise tax rate limits of home rule units. Indeed, section 28 — 4 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 28 — 4) sets forth the appropriate procedure for referenda which are required under article VII of the 1970 Constitution. Since the instant proposal for action to lower tax rate limits is not required by article VII of the 1970 Constitution, section 28 — 4 does not apply to this case. (See Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, 136.) For the reason that it was passed prior to the adoption of the 1970 Constitution and restricts and limits home rule taxing powers, neither does section 162a.

An additional reason in support of our holding that section 162a is inapplicable to home rule units is the fact that section 162a contains the following limitation:

“No proposition to increase or decrease a tax rate limit under the referendum provisions of this subsection (2), and where there is no other applicable statute for an increase or decrease in a tax rate limit by referendum or otherwise, shall increase or decrease such tax rate limit in effect on the date of the referendum by more than 25%.” (Ill. Rev. Stat. 1977, ch. 120, par. 643a(2).)

The foregoing provision places a limit on the power of the voters of the home rule unit to raise or lower their tax rates by referendum. Clearly, this provision constitutes a limitation on a home rule unit’s power to tax as its electorate sees fit, and therefore creates an additional conflict with article VII, section 6, of the Constitution.

The plaintiffs’ final contention is that section 162a has not been superseded by any exercise of home rule powers because no ordinance has been adopted purporting to abolish the referendum precedure or explicitly to insulate the village’s tax rate from section 162a. We have repeatedly held that “a home rule unit’s exercise of its power will supercede any conflicting pre-19 70-Constitution legislation.” (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 513; City of Rockford v. Gill (1979), 75 Ill. 2d 334, 340; Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 18; Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 527; Paglini v. Police Board (1975), 61 Ill. 2d 233, 235; Mulligan v. Dunne (1975), 61 Ill. 2d 544, 550; Peters v. City of Springfield (1974), 57 Ill. 2d 142, 147; Clarke v. Village of Arlington Heights (1974), 57 Ill. 2d 50, 53-54; People ex rel. Hanrahan v. Beck (1973), 54 Ill. 2d 561, 565-66; Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166-67.) We have not, however, precisely defined what constitutes an “exercise” of home rule power. In the instant case, while no ordinance was adopted refusing to place the proposition on the ballot, the village trustees did vote not to place the proposition on the referendum ballot. We think the plaintiffs argue for an overly technical interpretation of the term “exercise” when they insist that the adoption of an ordinance is a superseding exercise of home rule power while a vote at a trustees’ meeting is not. They are both acts taken by the governing board of a home rule unit, as an assertion of autonomy and independence from State control granted by article VII, section 6, of the 1970 Constitution. (See City of Urbana v. Houser (1977), 67 Ill. 2d 268, 273.) We are mindful of the late Professor David Baum’s comment that “preexisting statutes should remain as limitations on the actions of a home rule unit, at least until some contrary legislation is adopted by the governing body of the unit.” (Baum, A Tentative Survey of Illinois Home Rule (Part II): Legislative Control, Transition Problems, and Intergovernmental Conflict, 1972 U. Ill. L.F. 559, 577.) However, we do not think the professor’s statement was meant to apply in a case where, while there is no contrary legislation, there is certainly a conflict between the home rule unit’s power of self-government and a State statute. Thus, we think that the trustees’ vote not to place the proposition on the ballot did constitute an exercise of home rule power sufficient to evince that section 162a was superseded.

Accordingly, for the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52274.
    STEFAN STOJANOFF, Appellant, v. THE DEPARTMENT OF REGISTRATION & EDUCATION et al., Appellees.

      Opinion filed March 28, 1980.

      Stewart D. Spitzer, of Bieber & Spitzer, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Stefan Stojanoff, filed a complaint in the circuit court of Cook County for administrative review (Ill. Rev. Stat. 1975, ch. 91, par. 16b.08; ch. 110, par. 267) of an order of the Director of the Department of Registration and Education (hereafter Department) revoking plaintiff’s license to practice medicine in this State. The circuit court affirmed the Director’s order. The appellate court reversed and remanded to the Department with directions (72 Ill. App. 3d 584), and we allowed plaintiff’s petition for leave to appeal (73 Ill. 2d R. 315(a)). The relevant facts are adequately stated in the appellate court opinion (72 Ill. App. 3d 584, 585-88) and will be reviewed here only to the extent necessary to discuss the issues.

In June 1974 plaintiff sat for the Federation Licensing Examination (hereafter FLEX) to qualify for a license to practice medicine in this State. On six prior occasions he had taken and failed the examination given by the Department. A candidate for a license to practice medicine could fulfill the statutory requirement that he pass an examination “by and satisfactorily to the Department” (Ill. Rev. Stat. 1975, ch. 91, par. 3) by successfully completing either the National Board or the FLEX examination.

Department rules required that an applicant receive a general average of 75% with no grade below 60% in any of 12 subjects tested. Additionally, an applicant had to receive a general average of 75% in the clinical portion of the examination. Plaintiff received an overall score of 73.2% on the June 1974 FLEX and scored above 60% in all 12 categories tested. The evidence showed that plaintiff’s test scores were raised by Beverly Mason, acting supervisor of the Department’s Medical Section, and he was issued a license. The testimony was conflicting concerning whether the then existing Examining Committee (see Ill. Rev. Stat. 1973, ch. 91, par. 16b.10) (hereafter Committee) in fact authorized the changes and, if so, the reasons for so doing. Ms. Mason testified that she burned the shorthand notes of the minutes taken at the meeting of the Committee at which plaintiff’s examination results and possible licensing were discussed.

Effective November 21, 1975, subsequent to the time when the Department’s amended complaint seeking revocation of his license was served on plaintiff, the Medical Practice Act was amended to create the Illinois State Medical Disciplinary Board. (See Pub. Act 79 — 1130.) Although the record is not entirely clear, it appears that the members of the Medical Examining Committee continued on as acting members of the Medical Disciplinary Board. Because the alleged grounds for revocation might involve improprieties on the part of members of the Committee, the Director designated an attorney to serve as hearing officer. Over plaintiff’s objection to the hearing officer’s jurisdiction, hearings were held. The hearing officer filed a report in which he made findings of fact and drew conclusions of law, and recommended to the Director that the plaintiff’s license to practice medicine be revoked.

The Director adopted the findings of fact, conclusions of law and recommendations of the hearing officer and ordered that plaintiff’s license be revoked. The Director’s order also provided that plaintiff be given the opportunity “to retake the FLEX examination at the earliest date when it is offered by the State of Illinois” and “that this revocation be deemed as technical in nature and not to be construed as a violation pursuant to the practice of medicine.”

The circuit court affirmed the Director’s order and plaintiff appealed. The appellate court, after reviewing the authorities and the standards of due process, said, “The hearing afforded plaintiff in the instant case, absent Board review, did not meet the foregoing standards. Accordingly, we reverse and remand with instructions that the report of the hearing officer be submitted to the Board or other duly constituted examining committee for review and recommendation to the present Director.” 72 Ill. App. 3d 584, 589.

Plaintiff contends that the hearing conducted by the hearing officer alone was illegal and void and that the provisions of the Medical Practice Act, and constitutional due process, entitle him to a hearing de novo by a peer examining committee of the charges against him. He argues that the statute requires that the Committee “hear” the case and that the “single handed hearing” conducted by the hearing officer was therefore void. He argues further that because plaintiff is entitled to a hearing and not merely a review by a peer examining committee, the appellate court erred in holding “that the findings of the hearing officer are still viable and that on remand the Board’s function is simply to ‘review’ or ‘interpret’ those findings.”

This court has held “that, in the absence of statutory provisions to the contrary, it is not necessary that testimony in administrative proceedings be taken before the same officers who have the ultimate decision-making authority.” (Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 128.) Under the provisions of section 17.10 of the Medical Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 16b.10) the examining committees were “composed of persons designated from time to time by the Director of Registration and Education ***.” The amendment effected by Public Act 79 — 1130 (1975 Ill. Laws 3478) created the State Medical Disciplinary Board, the members of which were appointed by the Governor, with the advice and consent of the Senate. It appears from colloquy between the Director and plaintiff’s counsel, upon argument of plaintiff’s petition for rehearing, that immediately following the effective date of the amendment, the acting members of the Disciplinary Board were the same individuals whose conduct was brought into question by the allegations of the amended complaint. The record does not show whether these same individuals were members of the Medical Disciplinary Board at the time of the hearing in this case. The record shows that the complaint to revoke plaintiff’s license was filed by the Department on December 30, 1974; that the amended complaint was filed on October 20, 1975, and the hearing held in April and May 1976. We note that on the date of the filing of the Department’s complaint and continuously since that time, section 17.10 of the Medical Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 16b.l0; Ill. Rev. Stat. 1975, ch. 91, par. 16b.l0; Ill. Rev. Stat. 1977, ch. 111, par. 4449) provided in part:

“Whenever the Director is satisfied that substantial justice has not been done either in an examination, or in a formal disciplinary action, or refusal to restore a license or certificate, he may order a re-examination or re-hearing by the same or other examiners.”

Clearly it was contemplated that hearings would be held by other than the examining committee or Medical Disciplinary Boards provided for in the statute. In the absence of a statutory provision to the contrary, the designation of an impartial hearing officer was appropriate and proper.

The transcript of the proceedings before the hearing officer shows that plaintiff was given every opportunity to cross-examine witnesses and to adduce testimony. Plaintiff’s brief does not indicate what further testimony or evidence could be introduced were a hearing de novo to be granted. We hold, therefore, that neither the provisions of the statute nor the standards of due process require remandment for a hearing de novo. The appellate court did not err in directing that upon remandment to the Department the record be submitted to the Medical Disciplinary Board “for review and recommendation to the present Director.” 72 Ill. App. 3d 584, 589.

Plaintiff contends that “it offends his constitutional proprietary right and the notion of fundamental fairness to order the continued revocation of his medical license pending further administrative proceedings — especially in the absence of evidence of any impropriety, fraud, misrepresentation or mistake which led to the issuance of his license.” We do not agree. Section 17.08 of the Medical Practice Act (Ill. Rev. Stat. 1977, ch. 111, par. 4447) provides in part:

“During the pendency and hearing of any and all Judicial proceedings incident to such disciplinary action the sanctions imposed upon the accused by the Department shall remain in full force and effect.”

It is true that plaintiff is not accused of any wrongdoing, but we find persuasive the holding of the court of appeals in Tórnente v. Stackler (7th Cir. 1976), 529 F.2d 498. In Torriente the plaintiff had been mailed a letter by the Department of Registration and Education advising her that she had successfully completed “the recent Flex examination” (529 F.2d 498, 499) and that a license was being issued to her. No license was issued, and the Department filed an administrative complaint alleging that the quoted letter had been mailed “through accident, artifice, or some other means” (529 F.2d 498, 499), and that in fact the plaintiff had received a failing grade in the examination and was not qualified to practice medicine in Illinois. The plaintiff sought an injunction in the district court of the United States commanding the Director of the Department of Registration and Education to deliver her medical license to her. The district court dismissed the complaint and plaintiff appealed. In affirming, the court of appeals said: “Assuming that defendant’s withholding of the certificate of license amounts to a pre-trial suspension, that is justified by the overriding public interest in seeing that only qualified persons be licensed to practice medicine in Illinois.” (529 F.2d 498, 502.) We agree.

Plaintiff has briefed and argued several other contentions which we need not consider at this time. Whether they need ever be addressed depends upon the action taken upon remand, and as the court said in Mahin v. Baltis (1966), 34 Ill. 2d 413, 421, “issues that may thereafter arise are not now presented for decision.” For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed,.