author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE MORAN,

text:
    (No. 52957.
    PATRICIA POLICH et al., Petitioners, v. CHICAGO SCHOOL FINANCE AUTHORITY et al., Respondents.

      Opinion filed March 11, 1980.

      MORAN, J., dissenting.
    Wilson & Strawn, of Chicago (Edward J. Wendrow, Calvin Sawyier, Edward L. Foote and Thomas J. Campbell, of counsel), for petitioners.
    Albert E. Jenner, Jr., Anton R. Valukas, Michael J. Rovell, John H. Mathias, Jr., Linda L. Listrom, and Robert T. Markowski, of Chicago (Jenner & Block, of counsel), for respondent Chicago School Finance Authority.
    William R. Quinlan, corporation counsel, of Chicago (Martin Healy and Lee J. Schwartz, assistant corporation counsel, of counsel), for respondent City of Chicago.
    DeJong, Poltrock & Giampietro (Lawrence A. Poltrock, Wayne B. Giampietro, Kathrin A. Koenig, Gregory N. Freerksen, and Stephen G. Daday, law student, for amicus curiae Chicago Teachers Union, Local No. 1, AFL-CIO.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Pursuant to leave granted (73 Ill. 2d R. 381), petitioners, Patricia Polich, Norm Gierke, William Gierke, Gunthorp-Warren Printing Co., B. S. Miller and Herbert Loeb, filed this original action (Ill. Const. 1970, art. VI, sec. 4(a)) relating to revenue seeking a declaratory judgment that the School Finance Authority Act and other provisions of Public Act 81—1221, approved January 16, 1980, are invalid.

Petitioner Polich is a citizen and resident of the city of Chicago, petitioners Gierke are teachers employed by the board of education of the city of Chicago (the Board), and Gunthorp-Warren Printing Co. is an unsecured creditor of the Board. Petitioners Miller and Loeb are holders of board of education bonds maturing respectively on October 15, 1987, and December 1, 1981.

The relevant portions of Public Act 81 — 1221 will be set forth to the extent necessary to the discussion of the issues. The respondent, Chicago School Finance Authority (the Authority), is governed by a five-member board of directors, two of whom were appointed by the Governor with the approval of the mayor of Chicago; two directors were appointed by the mayor of Chicago with the approval of the Governor, and one director, appointed jointly by the Governor and mayor, serves as chairman of the Authority. Sec. 34A — 301.

Prior to consideration of the substantive issues presented, we deem it advisable to comment briefly on our exercise of jurisdiction over an original action which presents no actual controversy concerning the collection of revenue. Historically (Ill. Const. 1818, art. IV, sec. 2; Ill. Const. 1848, art. V, sec. 5; Ill. Const. 1870, art. VI, sec. 5) this court has been vested with original jurisdiction in matters relating to the revenue, and neither the framers of the constitutions nor this court have deemed it necessary to precisely define the term “revenue” as used in those constitutions. The jurisdiction has been sparingly exercised in causes involving issues relating to the revenue and of great public importance (see People v. Deep Rock Oil Corp. (1931), 343 Ill. 388; Thorpe v. Mahin (1969), 43 Ill. 2d 36; Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1; Continental Illinois National Bank & Trust Co. v. Zagel (1979), 78 Ill. 2d 387), and is appropriately asserted here.

In addition to the creation of the School Finance Authority, Public Act 81 — 1221 provided for the termination of the terms of all members of the school board effective April 30, 1980, and the appointment of a new board (sec. 34 — 3); reduced the maximum tax rate for educational purposes from 2.11% to 1.61% (sec. 34 — 53); provided for the reduction of the State aid funds payable to the school district under section 18 — 8 by an amount equal to the budget for the operations of the Authority, and payment of that sum to the Authority (sec. 18 — 8 (k)); and enumerated the powers of the Authority in the control of the finances and expenditures of the Board.

Section 34A — 401 of the Act provided that the Authority “shall have the power to approve or to reject the Financial Plans, Budgets and Contracts of the Board,” and other provisions detail the manner in which the Authority is empowered to supervise the fiscal affairs of the Board. (Secs. 34A — 401 to 411.) In order that it may carry out its fiscal duties and provide the Board with moneys with which to operate, the Authority was empowered by section 34A — 501 to issue general obligation bonds in an amount not to exceed $500 million. Section 34A — 503 provides in part:

“(a) Before or at the time of issuing any Bonds, the Authority shall demand and direct the City Council of the City to provide by ordinance for the levy and collection of a direct annual tax upon all the taxable property located within the school district without limit as to rate or amount sufficient to pay and discharge the principal thereof at maturity or on sinking fund installment dates and to pay the interest thereon as it falls due. The taxes as levied shall also include such additional amounts to the extent that the collections in the prior years were insufficient to pay and discharge such principal thereof at maturity, such sinking fund installments, if any, and interest thereon as it fell due and the amount so collected shall be placed in the debt service reserve fund. The City Council of the City shall levy and collect such tax as directed by the Authority. Such tax shall be in addition to and exclusive of the maximum of all taxes which the Authority, the Board or the City Council of the City is now, or may hereafter be, authorized by law to levy for any and all school purposes. Any such ordinance shall be in force upon its adoption.”

Petitioners contend that “the amendatory Act, in setting up the Authority with supervisory fiscal powers over the Board of Education and the power to incur debt and compel the Chicago City Council to levy taxes in order to pay the same, clearly violates the constitutional home rule powers of the City.” They argue that the Act confers upon the Authority complete control over the financial affairs of the board of education and compels the city council to levy and collect such taxes as may be directed by the Authority. Simply stated their contention is that, in violation of the constitutional home rule powers of the city, the statute grants the power to control the amount of money to be raised by taxes for the operation of the schools to persons other than the corporate authorities of the city of Chicago or persons selected and approved by them. Cited in support of this position are People ex rel. Vermilion County Conservation District v. Lenover (1969), 43 Ill. 2d 209, People ex rel. Bergan v. New York Central R.R. Co. (1945), 390 Ill. 30, People ex rel. Burow v. Block (1916), 276 Ill. 286, Morgan v. Schusselle (1907), 228 Ill. 106, and Lovingston v. Wider (1870), 53 Ill. 302. In Lovingston, decided under the 1848 Constitution, the General Assembly passed an act intended to establish a police force for East St. Louis. The act provided for the appointment by the Governor of three commissioners who would control the police department. The city was required to appropriate funds for the operation of the department, but failing that, the commissioners were empowered to issue certificates of indebtedness in the name of the city which were to be paid out of taxes. In holding that the legislature had exceeded its powers under article IX, section 5, of the Constitution of 1848, the court said:

“The validity of this act can hardly be considered an open question in this court, since the decision of The People ex rel. McCagg v. The Mayor of Chicago, 51 Ill. 17; Same ex rel. Wilson v. Salomon, ib. 37; Same ex rel. South Park Commissioners v. The Common Council of Chicago, ib. 58, and Harward v. St. Clair Drainage Company, ib. 130.
We held, in these cases, that the fifth section of the ninth article of the constitution, authorizing the legislature to give the corporate authorities of cities and towns the right of taxation for corporate purposes, was to be construed as a limitation upon the power of the legislature to grant the right of corporate or local taxation to any other persons than the corporate or local authorities. We further held, that, by corporate authorities, as used in this clause of the constitution, must be understood those municipal officers who are either directly elected by the people of the . municipality, or appointed in some mode to which they have given their assent. We further held, in the first of the above cited cases, that the commissioners of Lincoln Park were not corporate authorities, and in the last case, that the drainage company were not such authorities within the meaning of the constitution.
These cases, in our judgment, are conclusive against the validity of the act under consideration. These police commissioners are not the corporate authorities of East St. Louis, and, therefore, can have no power of taxation.” 53 Ill. 302, 304-05.

Article IX, section 9, of the Constitution of 1870, in force when the other cases cited were decided, provided in part:

“The general assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes; *** if

The Constitution of 1970 contains no comparable provision. Arguing that “an examination of the debates shows no intent to change the basic concept of the power to tax as enunciated in the cases cited above,” petitioners seek to have us hold that under the present constitution the power of the General Assembly is similarly restricted. They argue that to qualify “the right of a home rule unit, having the taxing power, to decide when it will levy a tax” violates article VII, section 6, of the 1970 Constitution, which 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 regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.”

As shown by the quotation from Lovingston v. Wider (1870), 53 Ill. 302, the constitutional provision pertaining to municipal taxing authority was construed as a limitation on the power of the General Assembly to grant the right of local taxation to anyone but the “corporate authorities.”

Article IX, section 1, of the 1970 Constitution provides in part:

“The General Assembly has the exclusive power to raise revenue by law except as limited or otherwise provided in this Constitution.”

This court, considering the scope and meaning of article IX, section 1, said in Hoffmann v. Clark (1977), 69 Ill. 2d 402, 422-23:

“In discussing the nature of the power of the General Assembly under the revenue article, this committee [Committee on Revenue and Finance, Constitutional Convention, 1970] explained that it ‘vests the power to raise revenue in the General Assembly except to the extent that the constitution grants such power to local governments or otherwise limits the legislature’s authority.’ (7 Proceedings 2062.) And further the committee stated:
‘Indeed, the inherent power of government to tax is so well established that it would undoubtedly be held to exist even in the absence of any constitutional provision authorizing it. *** As a result, any attempt to grant a specific taxing power in a state constitution becomes, in effect, a limitation on the inherent power. The Committee does intend to place limits upon the General Assembly in its exercise of the tax power, but those limits are expressly stated and they are exclusive. The Committee believes that it is very important to avoid the narrow and often unintended limitations which resulted from court interpretations of the existing constitutional provisions and which might again result if we were to attempt to spell out affirmatively and in detail the state’s taxing powers.
The proposed wording achieves this objective by affirming the sovereign power of the state and the General Assembly in Section 1 and then, in later sections, setting forth the specific restrictions which are intended to circumscribe the scope of the taxing power.
Section 1 allows the General Assembly broad latitude in imposing taxes ***. The Committee did not list these taxes in the proposal, however, because of the danger that a court might interpret any omission as a denial of the power to impose a tax not specifically named in the constitution. *** The Committee’s approach, in not listing taxes which the legislature may impose, recognizes that during the life of this constitution forms of taxation, or variations of existing forms, may be developed which the state should be free to adopt if its elected representatives so choose.
The Committee believes that the General Assembly presently has the power to levy all kinds of taxes. *** This proposal eliminates any doubt on that score. It permits the General Assembly to concentrate on the merits of tax policy rather than upon the constitutionality of a particular form of taxation and it places the formulation of tax policy in the legislature, where it belongs, rather than in the courts. ’ (Emphasis added.) 7 [Record of] Proceedings [Sixth Illinois Constitutional Convention] 2066-67.
From these explanations there can be no doubt that it was intended that the power to raise revenue through taxation is firmly vested in the General Assembly both through the inherent power of that body, and by the specific grant of the Constitution. It is further clear that it was the intent of the committee that this power be subject to only such limitations as are expressly stated in the Constitution and that the express limitations are to be exclusive. It was further clearly a concern of the committee that through court construction ‘narrow’ and ‘unintended’ limits might be placed upon the General Assembly’s power.”

In view of the foregoing, we conclude that, contrary to petitioners’ contention, the convention proceedings demonstrate the clear intent to change the extent to which the General Assembly may delegate the power to tax. The restrictions imposed by the cases cited by petitioners are no longer applicable. Because we consider that the issue of the validity of section 34A — 503 presents only the question of the General Assembly’s power to tax, we find it unnecessary to address the suggestion raised in respondent city of Chicago’s brief that because the Act is a limitation on the taxing power of a home rule municipality, a three-fifths majority was needed to pass the bill (Ill. Const. 1970, art. VII, sec. 6(g)). We note, parenthetically, that article IX, section 10, of the Constitution provides:

“This Article is not qualified or limited by the provisions of Article VII of this Constitution concerning the size of the majorities in the General Assembly necessary to deny or limit the power to tax granted to units of local government.”

We note further that article VII, section 8, of the 1970 Constitution empowers the General Assembly to provide for the “selection” of the officers of school districts, special districts and other units of local government. This negates petitioners’ contention, made in reliance on cases decided under prior constitutions, that members of the Authority must be elected or appointed in a manner approved by the voters of the city of Chicago.

Concerning the provision of section 34A — 503 that “the Authority shall demand and direct the City Council *** to provide by ordinance for the levy and collection of a direct annual tax ***,” we note that sections 34 — 22.2, 34 — 22.4, 34 — 22.7 and 34 — 3 of the School Code (Ill. Rev. Stat. 1977, ch. 122, pars. 34 — 22.2, 34 — 22.4, 34 — 22.7, 34 — 3) contain provisions which are substantially similar. In Latham v. Board of Education (1964), 31 Ill. 2d 178, 181-82, in rejecting the contention that the board of education rather than the city council made the tax levy for the Chicago school system, the court said:

“The fallacy of plaintiffs’ argument that the Board makes the levy is clear when we consider that even though all preliminary steps have been taken by the Board and a final budget has been adopted, not a penny of school taxes will be forthcoming without the adoption by the city council of an ordinance levying the tax.”

The rationale of Latham is applicable here.

Section 34A — 510 of the Act provides:
“The State of Illinois pledges to and agrees with the holders of Bonds that the State will not limit or alter the rights and powers vested in the Authority by this Act with respect to Sections 34A — 501 through 34A — 512 hereof so as to impair the terms of any contract made by the Authority with such holders or in any way impair the rights and remedies of such holders until the Bonds, together with interest thereon, with interest on any unpaid installments of interest, and all costs and expenses in connection with any action or proceedings by or on behalf of such holders, are fully met and discharged or provisions made for their payment. The Authority is authorized to include such pledge and agreement of the State in any resolution or contract with the holders of Bonds.” Pub. Act 81 — 1221.

Petitioners contend that, in effect, the foregoing provision “purports to prevent future legislatures from ever amending the School Code to abolish the Authority.” They argue too “that the Act in question in effect prevents future legislatures from abolishing the Authority which lasts as long as it has any 30-year bonds outstanding.” Citing People ex rel. City of Chicago v. Barrett (1940), 373 Ill. 393, they argue: “The General Assembly has the undoubted right to repeal all legislative acts which are not in the nature of a private grant ***.” “A General Assembly cannot bind its successors unless authorized by the Constitution ***.” In Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, section 4.04(e) of the Regional Transportation Authority Act (Ill. Rev. Stat., 1973 Supp., ch. 111 2/3, par. 704.04), which contained language substantially similar to that involved here, was attacked on the ground that it created “State debt.” The court held that the provisions did “nothing more than recognize an already existing obligation on the part of the State to the Authority’s note and bond holders not to impair their contractual relationship with the Authority ***.” (58 Ill. 2d 117, 128.) In Day v. Regional Transportation Authority (1977), 66 Ill. 2d 533, it was again contended that the provision under attack in Hoogasian, coupled with the provision providing for allocation of certain taxes, served to create State debt. Under the rationale of Hoogasian that contention was rejected. We fail to perceive in what manner the section binds future General Assemblies and hold that as in the legislation considered in Hoogasian and Day the clause expresses the intent to provide protection to the bondholders consistent with the constitutional provisions prohibiting impairment of contractual rights. U.S. Const., art. I, sec. 10; Ill. Const. 1970, art. I, sec. 16.

Petitioners contend next that Public Act 81 — 1221 is invalid for the reason that in reducing the board of education’s authorized tax rate and eliminating its control over the allocation of revenues to and among its various creditors, it impairs the obligation of contracts. The Act amends section 34 — 53 of the School Code to reduce the maximum tax rate for educational purposes from 2.11% to 1.61%. Section 34A — 404 requires the Board to submit budgets for the Authority’s approval or rejection. Section 34A — 405 empowers the Authority to adopt regulations identifying categories and types of contracts which must be submitted by the Board to the Authority for its approval or rejection. Section 34A — 409 empowers the Authority to direct the Board’s treasurer to establish and maintain the Board’s cash accounts in the manner prescribed by the Authority and further empowers the Authority to assume exclusive administration of the Board’s cash and bank accounts and to withdraw funds from these accounts for the Board’s lawful expenditures.

Faitoute Iron & Steel Co. v. City of Asbury Park (1942), 316 U.S. 502, 86 L. Ed. 1629, 62 S. Ct. 1129, involved a New Jersey statute under which a plan for adjustment of the claims of creditors of insolvent municipalities could be made binding upon all creditors. The statute was attacked as an impairment of the right of contract in violation of article I, section 10, of the Constitution of the United States. The Supreme Court held that the enactment of the legislation was within the police power of the State and that the legislation was valid. Similarly, in Community Renewal Foundation, Inc. v. Chicago Title & Trust Co. (1970), 44 Ill. 2d 284, 290, this court observed:

“It is appropriate to observe that the contract clause of the Federal constitution is not to be considered an absolute restriction or prohibition against the affecting of contracts and that the clause recognizes that they may be subject to the reasonable and legitimate exercise of the police power of the State. (See Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 447, 78 L. Ed. 413, 54 S. Ct. 231.) Where the State properly exercises this power for the general welfare, even though contracts and rights established by them are affected by its action, the exercise of this power is not an unconstitutional infringement of the contract clause. Such an exercise of police power will be considered superior to rights created under a contract between individuals. East New York Savings Bank v. Hahn, 326 U.S. 230, 90 L. Ed. 34, 66 S. Ct. 69; Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398; City of Chicago v. Chicago and North Western Ry. Co., 4 Ill. 2d 307; and Vissering Mercantile Co. v. Annunzio, 1 Ill. 2d 108.”

In section 34A — 102 the General Assembly found:

“(ii) A sound financial structure is esstential to the continued operation of any school system. It is vital to commercial, educational and cultural interests that the public schools remain in operation. To achieve that goal, public school systems must have effective access to the private market to borrow short and long term funds.
(iii) To promote the financial integrity of boards of education of cities having a population exceeding 500,000, it is necessary to provide for the creation of school finance authorities with the powers necessary to promote sound financial management and to assure the continued operation of the public schools.”

We are unable to say that the General Assembly erred in finding that the enactment of the legislation was within the necessary and appropriate exercise of its police power. We hold, therefore, that the enactment of the legislation was not an impairment of contract proscribed by either the United States Constitution or the Constitution of Illinois.

Petitioners contend next that the Act is invalid because it “constitutes a direct disavowal by the State of Illinois of its constitutional obligation to provide and finance an efficient system of high quality public education.” Petitioners assert that under the Act, the State “assumes absolutely no added obligations” in dealing with the financial crisis facing the Chicago school system.

Article X, section 1, of the 1970 Constitution provides:

“SECTION 1. GOAL-FREE SCHOOLS
A fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities.
The State shall provide for an efficient system of high quality public educational institutions and services. Education in public schools through the secondary level shall be free. There may be such other free education as the General Assembly provides by law.
The State has the primary responsibility for financing the system of public education.”

Petitioner does not assert that the State contributes nothing toward the public educational institutions and services for Chicago. Indeed the contrary is true. Under section 18.8 of the School Code (as amended by Pub. Act 81 — 1221), the State is still obligated to make aid payments, based on attendance, to the school district and the Authority. Also we note that in December of 1979 the State provided emergency funds to the school district both in the form of an advance of State payments and loans in the form of State aid payment anticipation certificates. The Board guaranteed that payment of the principal and interest on the loans would be made out of State aid payments for future months. This, we note, was accomplished without new legislation.

Apparently petitioners’ position is that the State, under the Constitution, is required to provide direct cash payments in order to alleviate this crisis rather than make provision, as it has done, for bond financing and repayment out of city taxes. We cannot agree.

In Blase v. State (1973), 55 Ill. 2d 94, the court construed the last sentence of section 1, article X, of the Constitution of 1970, which reads “The State has the primary responsibility for financing the system of public education.” The plaintiffs in that case contended that the Constitution required that the State provide at least 50% of the cost of public education. Rejecting that assertion, the court said:

“In view of the history of the proposal and the repeated explanations of its principal sponsor, it cannot be said that the sentence in question was intended to impose a specific obligation on the General Assembly. Rather its purpose was to state a commitment, a purpose, a goal.” 55 Ill. 2d 94, 100.

In view of the holding of Blase that article X, section 1, imposed no specific duty on the General Assembly and the strong presumption of constitutionality which must be overcome to invalidate the statute before us, we hold that the Act is not violative of article X, section 1, of the 1970 Constitution. The measures taken to alleviate the crisis facing Chicago schools are properly left to the wisdom of the General Assembly. Cronin v. Lindberg (1976), 66 Ill. 2d 47.

Petitioners contend next that Public Act 81 — 1221 (sec. 18 — 8.9(k)) provides on its face for a discriminatory deduction of State aid paid to the Chicago school district. This discrimination, they argue, is compounded by its marked racially discriminatory effect. They argue further that the equal protection clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 2), read in conjunction with express constitutional provisions establishing education as a fundamental goal of the State (Ill. Const. 1970, art. X, sec. 1), mandate strict judicial scrutiny of statutes involving disparity in provision of educational services.

Section 18 — 8.9(k) provides in pertinent part:

“For a school district operating under the financial supervision of an Authority created under Article 34A, the State aid otherwise payable to that district under this Section, other than State aid attributable to Title — I students, shall be reduced by an amount equal to the budget for the operations of the Authority as certified by the Authority to the State Board of Education, and an amount equal to such reduction shall be paid to the Authority created for such district for its operating expenses in the manner provided in Section 18 — 11 of this Act. The remainder of State school aid for any such district shall be paid in accordance with Article 34A when that Article provides for a disposition other than that provided by this Article.”

We need not and do not further address this contention. Obviously none of the petitioners are members of the class of school pupils against whom it is contended the statute is unreasonably discriminatory, and therefore no parties to the action have standing to question its validity. Cronin v. Lindberg (1976), 66 Ill. 2d 47, 56; Board of Education v. Bakalis (1973), 54 Ill. 2d 448, 467.

Petitioners contend next that if the Authority is treated as a unit of local government separate from the Chicago School District then “Section 18 — 8.9(k), as amended by the Act invalidly delegates to the Authority the determination, without standard, of the amount [by] which the appropriation of funds by the Legislature to the Common School Fund *** is to be reduced in connection with the Chicago school district.” Petitioners argue that section 18 — 8.9(k) sets no standards and that the amount payable to the school district is dependent upon “what the Authority happens to budget for its operations and certify to the State Board of Education as its operating expenses.” Consequently, it is argued, the section contravenes article II, section 1, of the 1970 Constitution, pertaining to separation of powers.

In Hill v. Relyea (1966), 34 Ill. 2d 552, 555, the court said:

“There is a distinction between the delegation of true legislative power and the delegation to a subordinate of authority to execute the law. (Lydy, Inc. v. City of Chicago, 356 Ill. 230.) The former involves a discretion as to what the law shall be; the latter is merely an authority or discretion as to its execution, to be exercised under and in pursuance of the law. (People v. Warren, 11 Ill. 2d 420; City of Evanston v. Wazau, 364 Ill. 198; McDougall v. Lueder, 389 Ill. 141.) It is an established rule that the General Assembly cannot delegate its general legislative power to determine what the law shall be. However, it may delegate to others the authority to do those things which the legislature might properly do, but cannot do as understandingly or advantageously. (Board of Education v. Page, 33 Ill. 2d 372; People ex rel. Daesch v. Mayor of Belleville, 22 Ill. 2d 226; City of Evanston v. Wazau, 364 Ill. 198.) Absolute criteria whereby every detail necessary in the enforcement of a law is anticipated need not be established by the General Assembly. The constitution merely requires that intelligible standards be set to guide the agency charged with enforcement, (Memorial Gardens Ass’n, Inc. v. Smith, 16 Ill. 2d 116; People v. Warren, 11 Ill. 2d 420,) and the precision of the permissible standard must necessarily vary according to the nature of the ultimate objective and the problems involved. Board of Education v. Page, 33 Ill. 2d 372; People ex rel. Daesch v. Mayor of Belleville, 22 Ill. 2d 226.”

As demonstrated by the debates on House Bill 1264, the drafters of the provision in question were unable to determine how much to budget for operating the Authority. In its first year of operation, for instance, the Authority would be required to incur large expenses related to the sale of bonds. Such expenses, however, would be expected to decline. In view of this and the unique nature of the undertaking, the inability of the General Assembly to set a precise budget for the Authority is understandable.

Moreover, when the Act is viewed in its entirety, it becomes clear that the Authority’s power to incur expenses is not unlimited. Section 34A — 201 of the Act provides in part:

“The purposes of the Authority shall be to exercise financial control over the Board, and to furnish financial assistance so that the Board can provide public education within the Board’s jurisdiction while permitting the Board to meet its obligations to its creditors and the holders of its notes and bonds. Except as expressly limited by this Article, the Authority shall have all powers necessary to meet its responsibilities and to carry out its purposes and the purposes of this Article, including, but not limited to, the following powers:
* * *
(m) to pay the expenses of its operations; ***.”

Thus, the Authority’s discretion is limited to incurring expenses “necessary” to discharge its responsibilities under the Act. In view of the difficulty or impossibility of defining more precise standards by which the Authority is to determine its budget and hence the amount ultimately allocable to the school district, we cannot say Public Act 81—1221 constitutes an unlawful delegation of legislative power. See also Paepcke v. Public Building Com. (1970), 46 Ill. 2d 330, 345-47; People ex rel. Stamos v. Public Building Com. (1968), 40 Ill. 2d 164, 174-76.

Petitioners contend that the Act is invalid because two essential provisions (sections 34 — 3 and 34A — 502(a)) were not passed by a three-fifths vote of the members elected to each house of the General Assembly. They argue that sections 5(a) and 10 of article IV of the Constitution of 1970 must be read together and that “It is contemplated that a bill ‘passed prior to July 1’ is one introduced after the convening of the Legislature on the second Wednesday of January of that calendar year.” They argue that because the Act had its origin in House Bill 1264 (which was introduced in March of 1979, and was not passed prior to July 1, 1979) when it was passed on January 11, 1980, it passed “after June 30th.” They argue that in accordance with the provisions of section 10 of article IV the bill cannot become effective until July 1, 1980, unless it was passed by the vote of three-fifths of the members elected to each house.

Article IV, section 10, of the Constitution of 1970 provides as follows:

“The General Assembly shall provide by law for a uniform effective date for laws passed prior to July 1 of a calendar year. The General Assembly may provide for a different effective date in any law passed prior to July 1. A bill passed after June 30 shall not become effective prior to July 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date.”

Both the constitutional provision and the legislation enacted in implementation thereof (Ill. Rev. Stat. 1977, ch. 131, pars. 21 through 26) referred to a bill “passed prior to July 1 of a calendar year” without regard to when the bill may have been filed or its prior course through the legislative process. (Ill. Const. 1970, art. IV, sec. 10; Ill. Rev. Stat. 1977, ch. 131, par. 21.) In our opinion this clear and explicit constitutional provision requires no construction, and in accordance with the provision contained in the bill, it became effective upon becoming a law.

Finally petitioners contend that Public Act 81 — 1221 could not, as required by article IV, section 8, of the Constitution, have been read “on three different days” in either house for the reason that it is obvious that it came into existence and “traversed the whole legislative process in one day, January 11, 1980.” Petitioners argue that House Bill 1264 filed in March 1979 dealt solely with the retirement age of certain school personnel. It was at that time entitled “An Act to amend the School Code.” It was read on three different days in the House, passed the House, and was sent to the Senate. In the Senate it received a first reading and was assigned to committee. On January 9, 1980, the bill was discharged from committee and given its second reading in the Senate. On January 11, 1980, everything but the title and the enacting clause was deleted from House Bill 1264 and the contents of what became Public Act 81 — 1221 were substituted. On that same date House Bill 1264 was given two readings in the Senate, passed the Senate, and was sent to the House, which passed it as received. Subsequently it was approved by the Governor. Petitioners argue that the foregoing procedure “is such a wilful and gross violation of article IV, section 8(d) that no categorization of these actions as being merely ‘procedural’ and as somehow absolved by the ‘enrolled bill’ rule seems adequate under the circumstances.”

Respondents contend that it was the clear intent of the framers of the Constitution, and our holding in Fuehrmeyer v. City of Chicago (1974), 57 Ill. 2d 193, that the argument made now by petitioners be foreclosed. In Fuehrmeyer the city of Chicago argued that a house bill was not validly enacted for the reason that it was not read by title in the Senate three times. In addressing that contention the court said:

“The City of Chicago argues that House Bill 3636 was not validly enacted and hence did not become effective because it was not read by title three times in the Senate. Section 8(d) of article IV of the Constitution provides: ‘A bill shall be read by title on three different days in each house.’ The City’s contention is based upon excerpts from the transcript of the debates in the Senate which fail to show that House Bill 3636 was read by title, although they do show that the bill was called upon third reading in the Senate, that there was a roll call and that the yeas and nays were taken by record vote. They were entered on the journal as required by the Constitution. Section 7(b) of article IV of the Constitution of 1970 provides: ‘Each house shall keep a journal of its proceedings and a transcript of its debates. The journal shall be published and the transcript shall be available to the public.’ We think that this contention of the City is answered by the subsequent provision of section 8(d) of article IV which states: ‘The Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met.’ Whether or not a bill has been read by title, as the Constitution commands, seems fairly to be characterized as a procedural matter, the determination of which was deliberately left to the presiding officers of the two Houses of the General Assembly.” 57 Ill. 2d 193, 198.

In Benjamin v. Devon Bank (1977), 68 Ill. 2d 142, the court recognized the validity of the enrolled-bill rule insofar as it related to procedural requirements for passage of legislation. The court said:

“The so-called ‘certification’ or ‘enrolled bill’ rule, contained in the last sentence of article IV, section 8(d), provides: ‘The Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met.’

The Committee on the Legislature of the constitutional convention explained the purpose of this provision as follows:

‘3. Journal Entry and Enrolled Bill Rules — Presently Illinois has the “journal entry” rule as distinguished from an “enrolled bill” rule. It is proposed that Illinois adopt the “enrolled bill” rule.
The “journal entry” rule means that a piece of legislation can be challenged in the courts by pointing to a defect in its passage as reflected in the journal. Under this rule, a statute duely [sic] passed by the General Assembly and signed by the Governor may be attacked in the courts, not necessarily on its merits, but on some procedural error or technicality found in the legislative process. The “journal entry” rule, as a result, leads to complex lititation over procedures and technicalities.
The “enrolled bill” rule would provide that when the presiding officers of the two houses sign a bill, their signatures become conclusive proof that all constitutional procedures have been properly followed. The “enrolled bill” rule would not permit a challenge to a bill on procedural or technical grounds regarding the manner of passage if the bill showed on its face that it was properly passed. Signatures by the presiding officers would, of course, constitute proof that proper procedures were followed.
For a thorough discussion of the Constitutional and legal problems associated with the existing “journal entry” rule, see: Braden and Cohn, The Illinois Constitution pp. 153-154, 157-158 and 159-160.
The method recommended for adopting the “enrolled bill” rule is to add the following phrase to the third paragraph of section 8 c [now section 8(d)] : “to certify that the procedural requirements for passage have been met.” ’ 6 Proceedings 1386-87.” 68 Ill. 2d 142, 145-46.

This case is distinguishable from Benjamin in that the alleged defect argued by petitioners would require examination of the Journal, whereas in Benjamin, failure to comply with the constitutional provision was apparent from the face of the bill. The enrolled bill rule is clearly applicable here, and we hold the legislation was properly enacted.

For the reasons stated we hold that Public Act 81 — 1221 is constitutional and became effective upon approval on January 16, 1980.

Judgment for defendants.

MR. JUSTICE MORAN,

dissenting:

This court may issue a declaratory judgment only if an actual controversy exists. (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375; Dean Milk Co. v. City of Aurora (1949), 404 Ill. 331, 334.) It cannot issue an advisory opinion based on the possibility of future harm or injury. (Exchange National Bank v. County of Cook (1955), 6 Ill. 2d 419, 422; Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1, 11.) In the case before us, the majority admits that there is no actual controversy but fails to explain why such deficiency does not act to prevent the court from taking original jurisdiction. The plaintiffs only “fear” that the obligations due them may be impaired by the School Finance Authority Act (Pub. Act 81—1221). To address those “fears” would be to merely render an advisory opinion. It is only when those fears become a reality that a declaratory judgment may properly be brought.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 52082.
    THE CITY OF CHICAGO, Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Appellees.

      Opinion filed March 21, 1980.

      William R. Quinlan, Corporation Counsel, of Chicago (Robert Retke and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, Mary C. Ubatuba, Assistant Attorney General, and Lynne Schellenberger, law student, of Chicago, of counsel), for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In a complaint for declaratory judgment against the Illinois Commerce Commission (Commission) and its individual commissioners, the city of Chicago, plaintiff, sought to have the Commission’s Rule 606 of General Order 138 declared “invalid, unlawful, void and unenforceable” and to have defendants enjoined from enforcing the rule against the plaintiff. The circuit court of Cook County entered judgment in favor of plaintiff, declaring Rule 606 to be null and void, its promulgation being beyond the jurisdiction of the Commission. The appellate court reversed (70 Ill. App. 3d 655), and we granted the plaintiff leave to appeal.

Defendants raise a threshold issue, challenging the jurisdiction of the circuit court to hear the plaintiff’s complaint. Specifically, defendants contend that the circuit court should have dismissed the complaint for plaintiff’s failure to exhaust its administrative remedies.

On August 22, 1973, following hearings at which plaintiff and other interested parties appeared, the Commission adopted General Order 138 Revised, which relates to the construction, maintenance, marking and protection of crossings of highways and railroads in Illinois. Rule 606 was promulgated as a part of said order and provides:

“On all overhead railroad structures having vertical clearance of less than 14’6” clearance signs are to be furnished, installed, maintained and replaced by and at the expense of the public authority having the duty of maintaining the signs along the highway requiring such signs or as covered by agreement. *** It shall be the duty of said public authority to determine the clearance to be indicated on said sign. Railroad companies may elect to do the actual work of installing, maintaining or replacing clearance signs. ***”

Together, sections 67 and 68 of the Public Utilities Act (the Act) (Ill. Rev. Stat. 1977, ch. 111 2/3, pars. 71, 72) allow a party to the administrative proceeding to seek a rehearing before the Commission and thereafter to appeal to the circuit court. Instead of following the statutory mode of review, plaintiff filed the instant complaint.

It has been held that the statutory method for review of Commission orders is exclusive. (Illini Coach Co. v. Illinois Commerce Com. (1951), 408 Ill. 104, 111; Chicago North Shore & Milwaukee R.R. Co. v. City of Chicago (1928), 331 Ill. 360, 374-75.) A party aggrieved by administrative action, even absent statutory guidance, ordinarily cannot seek review in the courts without first exhausting its administrative remedies. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 357-58.) This court has expressed the reasons for the exhaustion requirement:

“(1) it allows full development of the facts before the agency; (2) it allows the agency an opportunity to utilize its expertise; and (3) the aggrieved party may succeed before the agency, rendering judicial review unnecessary. [Citations.] ” [Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358.)

An exception has been established, however, where an administrative rule is challenged on its face as not authorized by the enabling legislation. (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 550; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548; Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552.) Here, plaintiff asserts that the portion of Rule 606 which requires public authorities to furnish, install, maintain and replace, at their expense, clearance signs on railroad overpasses at grade crossings is void as beyond the authority of the Commission under the Act. It is evident from such assertion that plaintiff is challenging the rule on its face, and not merely as applied to any particular set of circumstances or factual situation. The issue involves solely a matter of statutory interpretation and, therefore, its resolution is particularly appropriate for the judiciary. Consequently, plaintiff need not exhaust its administrative remedies in this instance, and the circuit court properly asserted jurisdiction over the action.

We turn now to the merits of plaintiff’s complaint. The Commission, because it is a creature of the legislature, derives its power and authority solely from the statute creating it, and its acts or orders which are beyond the purview of the statute are void. (People ex rel. Illinois Highway Transportation Co. v. Biggs (1949), 402 Ill. 401, 409. See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 551.) The Commission’s power to promulgate Rule 606 must, therefore, find its source in the Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 1 et seq.). Plaintiff contends that nowhere in the Act is the Commission empowered to require a public highway authority (including plaintiff) to improve and maintain the property of a privately owned public utility. (Plaintiff’s contention is inappropriate under the circumstances here in that clearance signs neither improve nor maintain a railroad’s property. In fact, the plaintiff’s right to use railroad property for the designated signs would serve to promote the public safety of highway users.) In support, however, plaintiff directs our attention to certain provisions of the Act which generally place the responsibility for utility property upon the utility itself.

Section 32 requires every public utility to provide and maintain service instrumentalities, equipment and facilities to promote the safety, health, comfort and convenience of its patrons, employees, and the public. (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 32.) Similarly, section 57 empowers the Commission to require every public utility to operate and maintain its plant, equipment or other property so as to promote and safeguard the health and safety of its employees, passengers, customers and the public, and to this end to prescribe, among other things, the installation of safety devices at grade crossings; and to prescribe the division of the cost of such installation between the utility and the public highway authority in interest. Ill. Rev. Stat. 1977, ch. 111 2/3, par. 61.

It is section 58 of the Act, however, that specifically governs grade crossings and provides in pertinent part:

“The Commission shall also have power by its order to require the reconstruction, minor alteration, minor relocation or improvement of any crossing (including the necessary highway approaches thereto) of any railroad across any highway or public road, whether such crossing be at grade or by overhead structure or by subway, whenever the Commission finds after a hearing or without a hearing as otherwise provided in this paragraph that such reconstruction, alteration, relocation or improvement is necessary to preserve or promote the safety or convenience of the public or of the employees or passengers of such railroad. By its original order or supplemental orders in such case, the commission may direct such reconstruction, alteration, relocation or improvement to be made in such manner and upon such terms and conditions as may be reasonable and necessary and may apportion the cost of such reconstruction, alteration, relocation or improvement between the railroad company or companies and other public utilities affected, or between such company or companies and other public utilities and the State, county, municipality, or other public authority in interest.” Ill. Rev. Stat. 1977, ch. 111 2/3, par. 62.

In the posture of this case, we assume, and plaintiff does not question, that the signs which are the subject of Rule 606 are necessary for the safety or convenience of the public. Also, plaintiff does not contend that the Commission is without power to order the instant work done, or that it is powerless to direct its order to any of the parties involved. Plaintiff maintains only that this section does not authorize the Commission to direct a public highway authority to place such signs on utility property.

It is well settled that the Commission’s jurisdiction over all phases of grade-crossing regulation is plenary and exclusive. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 125; City of Chicago v. Chicago & North Western Ry. Co. (1954), 4 Ill. 2d 307, 312; Illinois Central R.R. Co. v. Franklin County (1944), 387 Ill. 301, 309-10, 319; City of Chicago v. Illinois Commerce Com. ex rel. Chicago & Western Indiana R.R. Co. (1934), 356 Ill. 501, 508.) In the exercise of its power to regulate grade crossings in the interest of public safety, the Commission is vested with wide discretion to determine what the public interests require and what measures are necessary for the protection and promotion of those interests. (Chicago, Burlington & Quincy R.R. Co. v. Illinois Commerce Com. (1951), 410 Ill. 60, 64; Illinois Commerce Com. v. New York Central R.R. Co. (1947), 398 Ill. 11, 18.) The controlling portion of section 58 provides that “the commission may direct such reconstruction, alteration, relocation or improvement to be made in such manner and upon such terms and conditions as may be reasonable and necessary.” Implicit in plaintiff’s argument is that responsibility for actual performance of the work, as opposed to the cost of the work, is to be determined solely according to which party technically owns the particular portion of the grade crossing involved. We are convinced that the legislature did not intend to limit the Commission to such a restrictive and inflexible criterion as ownership, especially where, at grade crossings, property rights may sometimes merge or overlap. Rather, the only reasonable interpretation of section 58, in view of the cited authorities and of the statutory language itself, is that the Commission is to determine which party to hold responsible for actual performance of the work according to what, in its discretion, is “reasonable and necessary” under the circumstances, subject to judicial review under the Act. While property ownership may be a factor for the Commission to consider, it is not dispositive.

Plaintiff argues that Rule 606 will expose many local communities to potential tort liability for failure to adequately post or maintain clearance signs. This argument, while a factor in determining the desirability of the rule, is irrelevant to the question of the Commission’s authority to promulgate that rule.

In conclusion, we hold that the Act confers upon the Commission the power and authority to promulgate Rule 606. Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51934.
    THE COUNTY OF LAKE, Appellant, v. THE FIRST NATIONAL BANK OF LAKE FOREST et al., Appellees.

      Opinion filed March 21, 1980.

    Dennis P. Ryan, State’s Attorney, of Waukegan (James C. Bakk and Gary Neddenriep, Assistant State’s Attorneys, of counsel), for appellant.
    Erwin W. Jentsch, of Elgin, for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, the County of Lake, filed this action in the circuit court of Lake County seeking to enjoin defendants, the First National Bank of Lake Forest and Amalio N. Polidori, from violating the county’s zoning ordinance. Defendants filed a counterclaim for a declaratory judgment that the ordinance was void insofar as it purported to prohibit the use of defendants’ land for a restricted landing area and a museum. Following a hearing, the circuit court entered an order enjoining defendants from operating, inter alia, a private aircraft landing strip and an “air museum,” and defendants appealed. The appellate court reversed the order except as to the portion which enjoined the operation of an interior-decorating business and a warehouse-antique business (68 Ill. App. 3d 693), and we allowed plaintiff’s petition for leave to appeal.

The record shows that defendant Polidori, who is the beneficiary of a land trust for which the First National Bank of Lake Forest is trustee (hereinafter reference will be made only to defendant Polidori), acquired the 45-acre parcel here involved in 1952. In 1960 defendant applied to the Department of Aeronautics for permission to operate a “restricted landing area” on the property. Although the county and surrounding property owners were given notice and an opportunity to object, none did so. Notwithstanding its failure to object before the Department of Aeronautics, the county, in 1960, by letter, notified defendant that the site of his proposed landing strip was located in an “F” (farming) zone and that he would be required to secure a special use permit from the county board before proceeding. Defendant did not do so. In 1961 the Department of Aeronautics certified defendant’s landing strip as a restricted landing area, and it was so used until enjoined by the circuit court.

The Lake County zoning ordinance was revised in 1966. The record does not contain the ordinance in force prior to that time, but an exhibit indicates that the designation of the zoning classification applicable to defendant’s property was changed from F (farming) to AG (agricultural). The ordinance as revised required a “conditional use permit” for the operation of an “airport” or “heliport” in an agricultural zone. The ordinance does not contain a definition of either term. Museums are not enumerated among the conditional uses for which standards are provided in the ordinance.

It is not clear from the record when defendant began operating his air museum. Defendant assembled a collection of World War II aircraft, parts and related items of interest and began soliciting “donations” from visitors. This enterprise was known as the “Victory Air Museum.” Called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), defendant testified that 2,500 to 3,000 persons visited the museum in 1976 and approximately 2,000 did so in 1977. In 1977 the museum generated a gross income of approximately $2,900. Robert Streicher, the director of building and zoning for Lake County, testified on cross-examination that defendant’s was not the only museum operating in an agricultural zone. Lake County itself maintains a museum in an area zoned AG.

Other witnesses testified concerning the effects of the landing strip and the museum on surrounding uses, and as to the highest and best use of the property. Joseph Lenzen, whose property abuts the defendant’s landing strip at the strip’s north end, testified that planes frequently fly over his property in taking off and landing at defendant’s airstrip. On one occasion a plane brushed a tree which grew near his house. Lenzen testified on direct examination that total takeoffs and landings ranged from “close to 300” in 1973 to approximately 25 in 1977. However, on cross-examination he acknowledged that some of the flights over his house were attributable to Campbell Airport at Grayslake. A film taken by Lenzen depicting takeoffs and landings at defendant’s landing strip and overflights of Lenzen’s house was received in evidence.

There was testimony that use of the landing strip did not interfere with the use or enjoyment of a parcel of land located 155 feet from the defendant’s land or a house located 300 feet away. Witnesses testified concerning the unsuitability of defendant’s land for agricultural purposes and that only approximately 25% to 35% of the parcel was “farmable.” Defendant adduced testimony that his use of the land was compatible with surrounding uses and that the landing strip met the safety requirements of the State of Illinois. There was testimony that the museum was of historical value and contained “rare” and “very rare” aircraft. There was conflicting testimony concerning whether the presence of persons attracted to the museum interfered with the use or enjoyment of surrounding parcels of land. A real estate appraiser called by plaintiff testified that defendant’s property was best suited for “farmette” or “estate” uses and that the landing strip and museum had “a depreciatory effect on the values of property surrounding it.”

We consider first the question whether the plaintiff’s ordinance is applicable to a restricted landing area. The circuit court found “That the desired use of the property as a private landing strip requires a special permit from the County Board” and enjoined the use of “the property which is the subject matter of this lawsuit as a landing strip for aircraft.” In reversing that portion of the order, the appellate court held that although the zoning ordinance required airports and heliports to possess conditional use permits, it failed to define either term. It concluded that the definitions of “airport” and “restricted landing area” contained in the Illinois Aeronautics Act (Ill. Rev. Stat. 1975, ch. 15½, pars. 22.6, 22.8) were mutually exclusive. After reviewing the definitions contained in the municipal airport authorities act (Ill. Rev. Stat. 1975, ch. 15½, par. 68.1), the County Airports Act (Ill. Rev. Stat. 1975, ch. 15½, par. 110), and the St. Louis Metropolitan Area Airport Authority Act (Ill. Rev. Stat. 1975, ch. 15½, par. 302(f)), and the rule that zoning ordinances, being in derogation of the common law rights to the use of real property, must be strictly construed in favor of the right of a property owner to the unrestricted use of his property, the appellate court held “that the Lake County Zoning Ordinance is ambiguous and therefore is not applicable to a restricted landing area. Thus, a conditional use permit need not be obtained by this defendant. Accordingly the trial court’s injunction entered on count I of the plaintiff’s complaint was improper.” 68 Ill. App. 3d 693, 698.

Plaintiff’s ordinance provides for 20 zones and contains a table of the principal uses permitted in each of them. A footnote to the permitted-principal-uses table provides:

“The above uses in Table 1 are permitted in the zones designated. However, the Zoning Officer shall have the right to allow any other use which is similar to and compatible with those uses permitted in the zone in question, and which is consistent with the purposes of this Ordinance.”

The ordinance also provides:

“B. Variations — It is the intent of this Ordinance to use the variation only to modify the application of this Ordinance to achieve a parity among properties similarly located and classified. Specifically it is to be used to overcome some exceptional physical condition which poses practical difficulty or unnecessary hardship in such a way as to prevent an owner from using his property as intended by the Zoning Ordinance.
***
3. Standards for Variations — The Zoning Board may grant a variation whenever it shall have determined, and placed in its records, that all of the following conditions have been met:
a. That the variation does not permit a use otherwise excluded from the particular zone in which requested.”

In urging that the judgment of the appellate court was erroneously entered and must be reversed, plaintiff contends first that the zoning ordinance which expressly provides for conditional use permits for “airports and heliports” should be construed to include restricted landing areas. It argues that “this provision clearly indicates an intent on the part of the drafters that the permitted principal uses are to be broadly construed.” It argues further that proper application of the rule that the ordinance is to be strictly construed in favor of the property owner required that this ordinance be broadly construed to permit restricted landing strips under the designation “airports and heliports.” Thus construed, plaintiff argues, the ordinance required that defendant apply for a conditional use permit.

Alternatively, citing City of Chicago v. Sachs (1953), 1 Ill. 2d 342, plaintiff argues that where an ordinance lists the permitted uses to which property in an area may be devoted, those uses which are not listed are prohibited. Thus construed, use of defendant’s property as a restricted landing area was prohibited and the judgment of the circuit court must be affirmed.

The rule that an ordinance is void if it is indefinite and uncertain and its precise meaning cannot be ascertained (Consumers Co. v. City of Chicago (1921), 298 Ill. 339) applies to zoning ordinances. From our examination of the ordinance here, we conclude that the appellate court correctly held that it is ambiguous and therefore does not apply to a restricted landing area.

Plaintiff contends that the appellate court erred in placing upon it the burden of proving that the aircraft museum was unlawful under a prior existing ordinance and that the question was neither raised by defendant nor argued in his brief on appeal. Defendant concedes that the issue decided by the appellate court was not raised in his brief, but argues that the judgment should be affirmed for the reason that the judgment of the circuit court should have been reversed on grounds which were properly preserved for review.

The table of permitted principal uses contained in the ordinance shows that “museum or art gallery, public,” is a principal use permitted in zones SR (suburban residential), UR — 1, UR — 2, UR — 3 (urban residential), RR (resort residential), and CB (community business). The ordinance provides that in addition to the principal uses permitted in the designated zones, “the zoning officer shall have the right to allow any other use which is similar to and compatible with those permitted in the zone in question and which is consistent with the purposes of this ordinance.” The portion of the ordinance which provides “standards for conditional uses” makes no provision for museums, and clearly the procedure provided for obtaining a variation is inapplicable. It would appear, therefore, that the only method of obtaining a permit for use of defendant’s property as a museum would be to seek to rezone it into one of the classifications in which museums are permitted.

There is no contention that defendant’s inability to use the property as a museum would have any substantial effect on its value or that his inability to do so would in any manner affect its sale or development. The area in the vicinity of the property is sparsely populated and generally open space, and apparently has existed in that status for a period of approximately 60 years. The only evidence which would indicate an adverse effect on the public health, safety or welfare was that on three or four occasions during the year visitors to the museum had parked their automobiles on the shoulders of the road and in some instances had used neighboring property to turn around. There was no evidence to indicate that these occasional occurrences in any way disrupted the flow of traffic or hindered motorists in the use of the roadway, and nothing in the record indicates in what manner the problems allegedly resulting would be less difficult if the property were rezoned. A neighbor testified that the airplanes were “junk” and unsightly. Aesthetic considerations, although not disregarded, are not controlling (La Salle National Bank v. City of Evanston (1974), 52 Ill. 2d 415, 432) and are often a matter of personal taste. Further reason to question the validity of the ordinance is that the record shows that the plaintiff county itself maintains and operates a museum in an area zoned AG (agricultural).

On this record it is difficult to perceive in what manner the proscription of the use of the defendant’s property as an air museum would bear any real or substantial relation to the public safety, morals, comfort or general welfare. Absent some such relationship the ordinance, insofar as it relates to this property, is void. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46.) Because of the conclusions reached we need not consider the remaining contentions briefed and argued by the parties. For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 52296.
    ESTES COMPANY OF BETTENDORF, IOWA, Appellant, v. EMPLOYERS MUTUAL CASUALTY COMPANY, Appellee.

      Opinion filed March 21, 1980.

      Ira J. Melaas, of Wingard, Schultz, Shearer & Melaas, of Rock Island, for appellant.
    Robert A. VanVooren and Dana M. Craig, of Davenport, Iowa (Lane & Waterman, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Estes Company of Bettendorf, Iowa, commenced an action for declaratory judgment in the circuit court of Rock Island County against defendant, Employers Mutual Casualty Company, seeking a declaration that plaintiff was an additional insured entitled to defense and indemnity under the provisions of an automobile insurance policy issued by Employers to the Rock Island Ready Mixed Concrete Company. The circuit court found, in addition to matters not relevant to this appeal, that Estes was entitled to coverage under Employers’ policy, relying upon Bituminous Casualty Corp. v. American Fidelity & Casualty Co. (1959), 22 Ill. App. 2d 26, that the appearance filed by Employers’ attorneys did not constitute a waiver or estoppel to assert the exclusions of the policy, and that Employers’ refusal to defend was reasonable under the provisions of the policy. Both parties appealed this judgment to the appellate court. Employers sought review of the finding that the provisions of the policy afforded coverage to Estes. Estes sought review of the findings that Employers’ refusal to defend was reasonable and that Employers had not waived and was not estopped from asserting the policy exclusions. The appellate court reversed the circuit court, holding that Estes was not entitled to coverage under the policy and that Employers had not waived and was not estopped to assert the policy exclusions. (72 Ill. App. 3d 509.) We allowed Estes’ petition for leave to appeal.

The facts preceding the action in the trial court were not in dispute and were made the subject of a stipulation. This stipulation provided that on September 20, 1974, Estes was acting as a general contractor engaged in the construction of a building in Moline. Anderson Construction Company, a subcontractor, agreed to supply and pour the concrete for the footings and foundation of the building. Concrete was supplied to Anderson at the jobsite by Rock Island Ready Mixed Concrete Company. Estes was not a party to the contract between Anderson and Ready Mixed. The concrete delivered by Ready Mixed was poured either directly into forms prepared by Anderson or into a bucket connected to an overhead crane. The crane and bucket were used to transport concrete from the Ready Mixed truck to locations where the concrete was to be placed in the forms. The crane was owned and operated by H. A. P. Excavating Company.

The parties also agreed that on September 20, 1974, six truckloads of concrete had been delivered to the job-site between 1 p.m. and 4:30 p.m. by Ready Mixed. Between 4:30 p.m. and 5 p.m., the seventh load was delivered to the site. The crane bucket was swung over to the Ready Mixed truck, and the bucket was filled by a Ready Mixed driver-employee. The bucket was then swung over to locations along or near the footing and foundation forms where the concrete was emptied from the bucket. Several buckets of concrete were transported from the truck in this manner. As one bucket was being swung into position, the crane cable came in contact with high-voltage electrical-transmission lines owned and operated by Iowa-Illinois Gas and Electric Company. Two Anderson employees, Thomas Gosper and John Jones, suffered personal injuries when the crane and electrical lines came in contact.

The parties also agreed that Ready Mixed employees did not operate the crane at any time. The Ready Mixed trucks were not contractually or otherwise leased to Estes or Anderson, nor were the trucks borrowed by Estes or Anderson for any purpose. Ready Mixed employees exercised sole possession and control of the Ready Mixed trucks at all times here relevant.

The stipulation further provides that Ready Mixed was insured in accordance with the terms and conditions of an insurance contract issued by Employers. This contract provides coverage for bodily injury “caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury ***.” As relevant to the parties arguments in this court, the policy designates as an insured:

“(a) the named insured;
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
(1) a lessee or borrower of the automobile, or
(2) an employee of the named insured or of such lessee or borrower;
(d) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a), (b) or (c) above.”

Cosper and Jones, the injured individuals, each filed personal injury actions against Estes, alleging violations of the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, par. 60 et seq.). Ready Mixed was not named a defendant in either of these actions.

Estes contends that the injuries to Cosper and Jones arose out of the acts or omissions of Ready Mixed, the named insured, in unloading the cement. Estes argues that its liability under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.) is derivative, and for this reason it is an insured under clause (d) of the policy issued by Employers. In support of this position, Estes argues that the appellate court erred in concluding that the injuries to Cosper and Jones did not arise out of the unloading of the Ready Mixed truck. Estes contends that the process of unloading is not completed until the cement reaches its ultimate destination, in this case, the cement forms. The appellate court found that unloading was completed when delivery was accomplished, i.e., when the cement was deposited in the bucket. Employers asks us to affirm the appellate court on this issue. The issue of whether Estes was an insured under clause (d) of this policy focuses initially on whether the injuries to Cosper and Jones arose out of a use of the Ready Mixed truck provided in the contract, in the present case, the unloading of the truck. Estes does not contend that it was an insured under any other clause of the policy.

Loading and unloading clauses have been a feature of insurance policies for many years. A substantial body of case law has developed to assist in the construction of these clauses in particular situations. As the appellate court has noted, the decisions construing unloading clauses have utilized one of two theories to determine when unloading is complete, the “coming to rest” doctrine or the “complete operations” doctrine. Under the “coming to rest” approach, the unloading process includes only the actual moving of the article from the motor vehicle until it first comes to rest. When the article has begun to move toward its final destination, independent of the motor vehicle, the vehicle is no longer connected with the process of unloading. (See American Automobile Insurance Co. v. American Fidelity & Casualty Co. (1951), 106 Cal. App. 2d 630, 235 P. 2d 645.) Unloading under the “complete operations” doctrine, however, includes all the operations necessary to effect a completed delivery. (See Entz v. Fidelity & Casualty Co. of New York (1966), 64 Cal. 2d 379, 412 P.2d 382, 50 Cal. Rptr. 190.) We agree with the appellate court that the “complete operations” doctrine, which embraces all of the operations necessary to effect a completed delivery of the article, is the preferred view. See Magarick, Loading and Unloading Under the Standard Automobile Policy, 67 Dick. L. Rev. 257, 258-59 (1963); Risjord, Loading and Unloading, 13 Vand. L. Rev. 903, 904 (1960); Annot., 95 A.L.R.2d 1122, 1129 (1964).

The mere assertion of the “complete operations” doctrine, however, will not serve to resolve this case. Those courts which have adopted this doctrine have arrived at inconsistent conclusions in resolving substantially similar controversies. Some courts following this rule have held that “unloading” is not completed until the material has been delivered to its ultimate destination, in the present case, the concrete forms. (See St. Paul Mercury Insurance Co. v. Huitt (6th Cir. 1964), 336 F.2d 37, 42; Employers’ Liability Assurance Corp. v. Travelers Insurance Co. (D. Conn. 1968), 293 F. Supp. 604, 607.) Other courts, applying the same doctrine, have held that loading is completed when commercial delivery has been accomplished. See Galloway Crane & Trucking Co. v. Truck Insurance Exchange (1977), 67 Cal. App. 3d 386, 391, 136 Cal. Rptr. 645, 648; Liberty Mutual Insurance Co. v. Johnson, Drake & Piper, Inc. (8th Cir. 1968), 390 F.2d 410, 416.

Although it is true that the loading and unloading clause expands the scope of activities included within the use of the vehicle, we do not believe that the parties intended to extend coverage to an accident occurring after the concrete has been placed in a receptacle furnished by or on behalf of the purchaser. (Galloway Crane & Trucking Co. v. Truck Insurance Exchange (1977), 67 Cal. App. 3d 386, 390, 136 Cal. Rptr. 645, 646.) We believe it more reasonable to hold that “unloading” has been completed when, subsequent to removal of the material from the vehicle, the deliverer has finished his handling of it, and the material has been placed in the hands of the receiver at the designated reception point, despite the fact that it is necessary to transport the material thereafter to another point. In reaching this conclusion, we are persuaded by the reasoning of the California Supreme Court in Entz v. Fidelity & Casualty Co. of New York (1966), 64 Cal. 2d 379, 385, 412 P.2d 382, 386, 50 Cal. Rptr. 190, 194.

In the present case, it is unrebutted that the custom in the industry is that delivery of the premixed concrete to the purchaser is complete when placed in the first receptacle provided at the construction site. The injuries to Gosper and Jones occurred subsequent to delivery of the cement to Anderson Construction Company. The truck was unloaded so far as the concrete deposited in the bucket was concerned. At that point the concrete had been placed in the hands of the receiver at the designated reception point. Ready Mixed exercised no control over the cement, the bucket, or the crane. We therefore hold that the injuries to Gosper and J ones did not arise out of the unloading of the vehicle.

Estes argues that because the Ready Mixed truck was only “partially unloaded,” the injuries occurred within the process of unloading, and therefore within the terms of the policy. We have already determined that Ready Mixed had accomplished delivery of the cement when it was placed in the receptadle provided by Anderson. The fact that there remained additional material to be delivered will not serve to bring these subsequent injuries within the scope of the unloading clauses. Because we have determined that these injuries did not arise out of a use of the vehicle, as defined in the policy, we need not consider if, under any theory, Estes is an insured.

Estes argues in the alternative that Employers waived its right to rely upon the policy defenses by refusing to defend and that Employers is estopped from asserting the policy defenses by virtue of the general appearance of its attorneys in the Cosper and Jones personal injury actions. On June 1, 1976, following the taking of discovery depositions in the Cosper and Jones actions, Estes wrote to Employers asserting coverage under the Ready Mixed policy and demanding defense and indemnity for the personal injury actions. Employers responded in July of 1976, denying liability and refusing to defend. The present action was filed on September 10, 1976. On June 29, 1977, Employers offered to defend Estes, subject to a reservation of the policy exclusions, pending the outcome of the present action. This offer was refused by Estes. On September 13, 1977, Lane and Waterman, attorneys retained by Employers, filed a general appearance on behalf of Estes in the then consolidated actions of Cosper and Jones. An attorney for the firm testified that he had difficulty obtaining documents and that the appearance was filed for the sole purpose of maintaining the status of the lawsuit. We agree with the appellate court’s holding that defendant had not waived its right to rely on the policy defenses by refusing to defend. The duty to defend is determined by the allegations in the complaint. Ready Mixed was not named in the complaints of Cosper or Jones, nor were any facts alleged which would ostensibly give rise to potential coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193.) We also agree with the appellate court that plaintiff’s failure to raise estoppel in its pleadings in the trial court, raising this issue for the first time on the morning of trial, fails to preserve this issue for review. (County of Cook v. Priester (1976), 62 Ill. 2d 357, 371.) Estoppel should have been affirmatively pleaded. Ill. Rev. Stat. 1977, ch. 110, par. 43.

For the reasons stated, we affirm the judgment of the appellate court.

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 52238.
    ESTHER GLADSTONE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Glencoe Park Recreation District, Appellee).

      Opinion filed March 21, 1980.

      Harold A. Liebenson, of Chicago, for appellant.

      Louis J. Cohn, of Cohn, Lambert & Ryan, Ltd., of Chicago, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The employee, Esther Gladstone, appeals from the order of the circuit court of Cook County confirming the Industrial Commission’s affirmance of the arbitrator’s finding that the employee is entitled to $393 from the employer, Glencoe Park Recreation District, for necessary medical expenses incurred but that she failed to prove she sustained any disability as a result of her accidental injury for which compensation is payable. There is no dispute that the employee suffered an injury arising out of and in the course of the employment relationship. The only issue is whether the Industrial Commission’s decision is against the manifest weight of the evidence. Review is sought pursuant to our Rule 302(a). 73 Ill. 2d R. 302(a).

The employee, a bookkeeper for the Glencoe Park Recreation District, was injured on September 21, 1971, at approximately 7 p.m., when she slipped down 10 to 12 stairs. She felt pain in her legs and body, and her legs were bleeding. She did not see a doctor, as recommended by her supervisor, until September 27, 1971. From September 27 until December 8 the employee was treated six times by Dr. David Littman for injuries to her right great toe. She also complained of pain in her right arm. Dr. Littman advised her to see an orthopedic surgeon due to the continued swelling in the toe. The employee began seeing Dr. Irving Wolin, an orthopedic surgeon who had previously treated her. He began treating her toe in February 1972 but did not begin treating her right arm until June 1972, nine months after her accident. The employee complained of numbness in her right arm and restricted movement of her right hand.

At the arbitration hearing on May 27, 1974, the employee initially failed to recall repeated injuries and treatment to her right arm and hand prior to the September 21, 1971, injury. However, on cross-examination she recalled suffering injuries to either her right shoulder, arm, or hand in 1956, 1957, 1966 and 1969, after being confronted with her treating doctor’s records. The employee’s witness, Dr. Wolin, testified that he had treated various injuries to the employee’s right arm and hand beginning in 1956. In 1958, Dr. Wolin diagnosed the employee as having recurrent epicondylitis, the same condition that he diagnosed following the 1971 injury. The last injury treated by Dr. Wolin before the injury in question was to the employee’s right hand and arm in July 1969. Also, he treated the employee for numerous injuries to her lower extremities, including her right great toe, between 1956 and 1971.

Following the arbitration hearing, the employee was hospitalized and surgery was performed on her right wrist on June 18, 1975, and again in April 1976. At the Industrial Commission proceeding the employee complained of limited mobility of her right wrist. There was testimony by Dr. Lawrence Ferguson, the employee’s surgeon, that there was a causal relationship between the accident in question and the employee’s condition. However, on cross-examination Dr. Ferguson testified that the condition of the employee’s right arm may have existed before September 21, 1971. The Industrial Commission affirmed the arbitrator’s decision.

As we have stated on numerous occasions, this court will not set aside a finding of the Industrial Commission unless the finding is contrary to the manifest weight of the evidence. (A.O. Smith Corp. v. Industrial Com. (1976), 65 Ill. 2d 224.) In the case before us the employee contends that the Industrial Commission’s finding is against the manifest weight of the evidence because her testimony was uncontradicted and the employer presented no medical witnesses. The employee’s contention ignores the existence in the record of her numerous failures to recall repeated injuries and treatment to her right arm and hand prior to September 21, 1971, and to the testimony elicited on cross-examination from her medical witnesses concerning the possibility of the employee’s condition stemming from occurrences prior to September 21, 1971. The Commission may draw reasonable inferences from both direct and circumstantial evidence, and these permissible inferences will not be disregarded because other inferences might be drawn. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10.) It is within the province of the Industrial Commission to draw inferences from the evidence, resolve conflicting testimony, determine the credibility of witnesses, and decide whether the claimant has met the burden of proof. (Scott v. Industrial Com. (1979), 76 Ill. 2d 183.) Thus, the Industrial Commission’s finding of no disability resulting from the accident will not be disturbed, since the record does not show this determination to be contrary to the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


text:
    (No. 52607.
    HARMON A. HESS, Jr., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Keystone Steel & Wire Co., Appellee).

      Opinion filed March 21, 1980.

      Lindholm & Williamson (Nile J. Williamson, of counsel), for appellant.
    Jeffrey B. Rock, of Swain, Johnson & Card, of Peoria, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Claimant, Harmon Hess, was awarded compensation benefits by an arbitrator. The Industrial Commission set aside the award, finding that the site of claimant’s accident was not under the control of respondent and, therefore, that claimant had failed to prove that his injuries arose out of and in the course of his employment. The circuit court of Peoria County affirmed the Commission, and claimant appeals.

Claimant, an employee of respondent, parked his car in the company-owned lot. A public street separated the parking lot from respondent’s plant. Claimant approached the street at the designated crosswalk and pushed the button to activate the traffic-control light installed to stop oncoming traffic. While walking within the crosswalk, claimant was struck by a vehicle which had disregarded the signal to stop.

Claimant admits that there is no evidence in the record to show that, at the time of the injury, he was under respondent’s direction or to show that the crosswalk was under respondent’s control. He asserts, however, that there was sufficient evidence to show that the crosswalk was for the accommodation of employees of the respondent. We disagree. The evidence merely showed that other employees used the crosswalk.

In Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 151-52, the claimant left her place of employment at the end of her shift to travel home. While crossing the street which separated the factory from the company-owned parking lot, she was struck by an automobile and injured. The court stated:

“[T] he street where the injuries occurred was not under the control of the employer, nor was the claimant acting at the direction of her employer when she crossed the street, or for his benefit or accomodation. The case thus comes within the general rule that injuries which occur to an employee while he is going to or coming from the place of his employment do not arise out of or in the course of his employment.” Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 151-52.

See Eisenberg v. Industrial Com. (1976), 65 Ill. 2d 232, 233; Browne v. Industrial Com. (1967), 38 Ill. 2d 193, 194.

We find the facts of the present case to be indistinguishable from the facts in Osborn and, therefore, affirm the judgment of the circuit court of Peoria County.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52391.
    CUTHBERT D. LAMBERT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Peabody Coal Co., Appellee).

      Opinion filed March 21, 1980.

      Harold G. Lindholm, of Lindholm & Williamson, of Peoria, for appellant.
    Keefe & De Pauli, P.C., of East St. Louis, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Cuthbert D. Lambert, claimant in this workmen’s compensation case, appeals from the judgment of the circuit court of Christian County confirming a decision of the Industrial Commission denying compensation. That decision affirmed an arbitrator who had found that claimant had failed to prove that his injuries arose out of and in the course of his employment or that his present condition was causally related to an alleged accident on October 18, 1973. The only issue is whether those decisions are contrary to the manifest weight of the evidence.

Before the arbitrator claimant testified that on October 18, 1973, he was employed by Peabody Coal Co. as a belt clean-up man. His job involved shoveling coal which fell off conveyer belts. At about 11 a.m. he slipped and fell backwards, his buttocks and lower back striking a 2-inch water pipe 3 or 4 inches off the ground. No one witnessed this, but claimant testified that he informed his shift foreman of the accident and received a report card which he took to the mine office. He did not request medical help and continued working until the next summer.

In the interim claimant visited Dr. Hagen twice concerning a lung ailment and Dr. DelValle, who was also the company doctor, three times in regard to a previous injury. In 1957 claimant had been in a slide in the mine and had both feet broken. He recovered and returned to work in the mine until 1967, when his left hip was crushed in another accident. Recovery from this injury required 4 years and two operations, the latter involving installation of an artificial hip joint. As a result he received compensation for 100% loss of the use of his left leg. Claimant returned to work in the mine as belt clean-up man in 1971. He testified that since his return he had received some “flak” regarding his injuries. During the three visits to Dr. DelValle claimant obtained medicine to relieve the pain in his leg. In none of the visits to Dr. Hagen or Dr. DelValle did claimant mention any problems with his back.

The mine closed down for vacation from June 22 until July 8, 1974. During this period claimant bid into a different job at the mine and obtained an authorization from one of the mine clerks to visit Dr. DelValle on June 28. During that visit claimant told the doctor about the October 18 incident, but the record does not indicate whether claimant said that he had back pains. The doctor’s record of the visit refers only to problems with claimant’s leg. The doctor examined him and X-rayed his left leg but found nothing wrong with it. Dr. DelValle gave claimant a return-to-work slip but also made an appointment for him to see Dr. William Schroeder on July 15. After vacation claimant returned to his old job for a few days and then went to his new job, belt vulcanizing, which was above ground for the most part. On one occasion, however, he had to go down into the mines and carry some heavy materials. He testified that after doing this he had more pain, but did not specify whether this was pain in his back or leg or both nor whether he reported this incident. He continued to work until he entered the hospital on July 17, 1974.

Claimant also introduced the deposition of Dr. Schroeder, who stated that claimant had been referred to him because of pains in his leg and back, and that claimant complained of pain in the lower back and left leg. The doctor also stated that he understood claimant had been involved in an accident around November of 1973. Dr. Schroeder hospitalized claimant on July 17 for further examination and an attempt at conservative treatment, but the latter failed. A subsequent myelogram revealed extradural anterior pressure in the L4-L5 disc, and Dr. Schroeder performed a double lumbar laminectomy, which relieved some of the pain. The doctor further testified that coal miners are predisposed to back injuries and that claimant had a high tolerance for pain. He concluded that considering the absence of any back complaints before the incident around November of 1973, that accident either caused the back injury or aggravated an existing condition. He did not think that claimant’s hip replacement had caused his back problems.

On cross-examination, Dr. Schroeder admitted that his notes of the July 15 examination refer only to pain in the left leg and that they do not contain a patient history or refer to any accident. Dr. Schroeder thought that claimant’s fear of losing his job and his previous surgical experience motivated him to endure the pain in the months after the accident. Dr. Schroeder said that he had not compared his X rays with any previous X rays and admitted that some disc problems are not related to specific traumatic events. He could not say when the disc had ruptured. He thought that the hip replacement had reduced the pressure on claimant’s back but admitted that the distortion caused by limping could cause a disc to rupture. Claimant’s back problems were on the left side and there was nothing abnormal orthopedically or neurologically in the right lower back. Claimant was also overweight and this, too, can cause back problems. On redirect examination Dr. Schroeder testified that the symptomatology and prognosis of a total hip replacement are different than those for a double lumbar laminectomy.

At the hearing before the Commission, Peabody introduced the deposition of Dr. Marvin Mishkin. He testified that his examination of claimant revealed a long-term osteoarthritic degenerative change in the back. Claimant also had other musculoskeletal problems and disabilities, including the hip problem, which would be major contributing factors to the stress on his back. Dr. Mishkin could not medically establish a causal relationship between a fall in October 1973 and the disc problems. He did think, however, that the later heavy-lifting incident mentioned by claimant suggested a causal relationship. On cross-examination Dr. Mishkin admitted that people have different pain tolerances but denied that surgery increases a patient’s tolerance of pain. He said that claimant’s work as a coal miner placed stress on his back over a long period of time and that, given the long-term degenerative change, he could not say whether the fall had an aggravating effect or a major or minor effect. Sometimes back pain cannot be related to a specific traumatic incident and sometimes patients have back pains for months before coming to a doctor.

Initially we note that an award in this case could not be based on either the long-term effect of mine work on claimant’s back or the effect of the heavy-lifting incident. Section 6(c) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.6(c)) prohibits any claims under the Act unless the employee gives notice of his injury within 45 days of the accident. (See also Ristow v. Industrial Com. (1968), 39 Ill. 2d 410.) Nothing in the record indicates that claimant gave any notice regarding the heavy-lifting incident, and his application for adjustment of a claim refers only to the October 1973 fall. Claimant therefore cannot receive compensation under the Act on the basis of any injuries received in the heavy-lifting incident. Furthermore an employee is not entitled to compensation under the Act for the effects of prolonged stress on his body unless he can show an injury traceable to a specific time, place and cause. (Bunney v. Industrial Com. (1979), 75 Ill. 2d 413; International Harvester v. Industrial Com. (1973), 56 Ill. 2d 84; Gould National Batteries, Inc. v. Industrial Com. (1966), 34 Ill. 2d 151.) Therefore the long-term effects of work-related stress on claimant’s back are not compensable under the Act unless he can show that his bodily structure gave way at a specific place and time.

Claimant contends that his injury occurred when he fell and struck his back on the water pipe on October 18, 1973. The determination whether this incident caused his present condition required the Commission to evaluate the conflicting medical evidence. (Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556; Johns-Mansville Corp. v. Industrial Com. (1975), 60 Ill. 2d 221; Laclede Steel Co. v. Industrial Com. (1955), 6 Ill. 2d 296.) We will not reverse such a factual determination by the Commission unless it is against the manifest weight of the evidence. Board of Trustees v. Industrial Com. (1973), 55 Ill. 2d 293; Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32.

Claimant points out that proof of good health before an accident and bad health afterwards creates an issue of fact as to the causal relationship between the accident and the subsequent condition.(A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240.) That principle, however, can scarcely benefit claimant, with his prior injuries and preexisting problems. In any event, evaluation of the causal relationship was the Commission’s responsibility, and it was resolved against claimant'. Given the fact that claimant did not complain of back problems until 9 months after his fall, even though he had seen doctors for other problems on five occasions in the interim, the earlier severe injuries and resulting disabilities, and the différing reports of the three doctors, it is apparent that the Commission’s findings are not contrary to the manifest weight of the evidence.

The judgment of the circuit court of Christian County is accordingly affirmed.

Judgment affirmed.