author: Mr. Chief Justice Klingbiel

text:
    (No. 34062.
    Carl Anderson et al., Appellees, vs. The County of Cook, Appellant.

      Opinion filed November 26, 1956.

      John GutknechT, State’s Attorney, of Chicago, (Gordon B. Nash, Martin R. Handelman, Robert G. Macicey, Charles D. Snewind, William Sylvester White, and Francis X. RilEy, of counsel,) for appellant.
   Mr. Chief Justice Klingbiel

delivered the opinion of the court:

Carl G. Anderson and his wife, Christine, filed suit against Cook County in the circuit court of Cook County, seeking a judgment declaring invalid a county zoning ordinance as it applies to their property. The trial court granted the relief requested, and the county appeals. Plaintiffs have not appeared or filed brief in this court.

In 1952 plaintiffs purchased and moved into the property in question, a two-story brick house situated in Cook County. They bought it because it contained two flats, one of which they hoped to rent out. They later discovered that under the county zoning ordinance the property was restricted to single-family occupancy. A petition to change the classification was denied by the board of zoning appeals, and the denial was affirmed by the county board of commissioners. The present suit for declaratory judgment followed.

The area in which the subject property is located is classified as a “farming” district. The uses permitted in such a district include, among others, poultry and animal farms, greenhouses, nurseries, dog kennels, riding stables, and veterinary establishments. Residence use is limited to single family occupancy, with a designated minimum area required for each residence. It appears from the evidence that plaintiffs’ house is located on a lot approximately 75 feet wide and 880 feet deep, in a sparsely settled area containing principally farms and residences. The next property to the east is improved with a brick and stone two-flat building. Immediately south of the subject property there is a nursery, and adjoining it on the west and north are farms. Elsewhere in the area, within a half-mile radius, there are a trailer sales agency, a motel, a trailer camp, a gun club, and a truck terminal, in addition to farm lands and residences. About a quarter of a mile to the southwest is a subdivision containing some 12 single family residences. An expert witness on behalf of plaintiffs testified that the presence of a two-apartment building in a farming district does not tend to lessen the value of surrounding real estate or increase traffic hazards, and that it has no relation to public health, comfort, or morals. However, defendant’s expert testified that this was a single-family dwelling area; that to establish multiple dwellings here would amount to spot zoning of a single-family area; and that the only way the county could restrict the density of occupancy in areas with inadequate sewer, water, and school facilities, was by the establishment of single-family residence zones. No evidence was introduced showing the extent, if any, to which the value of plaintiffs’ property is impaired by the restriction.

Defendant contends the evidence fails to establish the unreasonableness of the ordinance. It is well established that if there is room for a legitimate difference of opinion concerning its reasonableness, or if the question is fairly debatable, the courts will not interfere with the judgment of the legislative body. (La Salle National Bank v. City of Chicago, 5 Ill.2d 344.) Here the evidence shows that while the neighborhood contains some properties devoted to two-family residence and commercial uses, there is also a substantial number of farms and single-family residences. Its essential character is subject to a reasonable difference of opinion. The meager evidence in this record fails to indicate the extent to which property value is diminished by the ordinance, and there is little basis upon which to compare the public gain with the hardship imposed on the plaintiffs.

Plaintiffs having failed to afford this court the benefit of a brief, there is nothing from which we can ascertain the grounds upon which they rely to sustain the judgment below. We have carefully examined the evidence, however, and conclude it is not of the clear and affirmative character necessary to show the restriction arbitary or unreasonable as to their property. We have heretofore observed that a single-family territory is more desirable for residential purposes than one where two-family uses are permitted, and that the use of property for two-family purposes entails congestion and inconvenience having a substantial relation to public health and safety. (Wesemann v. Village of La Grange Park, 407 Ill. 81, 87.) In the absence of a showing that in this case the restriction is arbitrary and unreasonable, the presumption of validity prevails, and the ordinance must be upheld.

The restriction in question is doubtless a hardship upon the plaintiffs, who purchased the house in the reasonable expectation of renting out one of the apartments, and the proposed use in this area may well be consistent with the purposes of the statute authorizing county zoning. (Ill. Rev. Stat. 1955, chap. 34, par. 152L) But the present proceeding is not an action to review the decision of the county authorities in refusing to change the classification, nor did the plaintiffs attack the validity of the ordinance or statute generally. The sole question here is whether the ordinance, as applied to plaintiffs’ particular piece of property, is arbitrary and without substantial relation to public health and safety. In such a case the courts cannot act as a zoning body or take any action to reclassify or rezone the property. First National Bank of Lake Forest v. County of Lake, 7 Ill.2d 213, 224.

We conclude that the plaintiffs failed to show by clear and affirmative evidence that the ordinance, as applied to their property, is unconstitutional. The judgment of the circuit court must therefore be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. ChiEE Justice Klingbiel

license: Public Domain

text:
    (No. 34071.
    The People of the State of Illinois, Defendant in Error, vs. Frank A. Herzic, Plaintiff in Error.

      Opinion filed November 26, 1956.

      Frank A. Herzic, pro se.

    Latham Castle, Attorney General, of Springfield, and John GuTknECht, State’s Attorney, of Chicago, (Irwin

      D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for the People.
   Mr. ChiEE Justice Klingbiel

delivered the opinion of the court:

After trial by jury in the criminal court of Cook County Frank A. Herzic was convicted of the crime of burglary. He was sentenced to the penitentiary for life, under the Habitual Criminal Act. (Ill. Rev. Stat. 1947, chap. 38, par. 602.) He prosecutes this writ of error pro se, contending that the court erred in sentencing him as an habitual criminal. Only the common-law record is presented.

Section 1 of the Habitual Criminal Act, insofar as it is relevant, provides that “Whenever any person who has been convicted of burglary, grand larceny, * * * when the punishment was imprisonment in the penitentiary, shall thereafter be convicted of any of such crimes, committed after the first conviction, the punishment shall be imprisonment in the penitentiary for the full term provided by law for such crimes at the time of the last conviction therefor.” The indictment charged that on January 21, 1949, defendant broke and entered the “Office of Internal Revenue” with intent to steal money and property of the United States situated therein. It was further alleged that on March 27, 1944, defendant had been convicted, in the United States District Court for the Northern District of Indiana, of larceny of money belonging to the United States, in the amount of $2793.97; that he had been sentenced thereon to imprisonment for a period of three years; and that he was thereafter imprisoned in the United States Penitentiary at Leavenworth, Kansas, pursuant to such judgment and sentence. By their verdict the jury in the case at bar found that defendant had been so convicted.

The present argument is that the record does not speak the truth; that the Federal offense for which he had been previously convicted was designated not as “larceny” but as “Theft of Government Property,” an offense not mentioned as such in the Habitual Criminal Act. In support of the argument defendant presents to this court a certified copy of the docket entry and judgment order of the Federal district court which so labels the crime. The certified copy of the former proceedings is not, of course, a part of the common-law record in this case, and cannot be considered. (People v. Owens, 397 Ill. 166.) In any event, however, it is the nature of the former offense, and not the particular designation given to it in a foreign jurisdiction, that determines the applicability of the Habitual Criminal Act. The indictment here alleged that defendant had been “adjudged guilty of and convicted of larceny, to-wit: stealing said money and personal property of the value exceeding fifteen dollars, (to-wit: of the value of two thousand seven hundred ninety three dollars ninety seven cents lawful money of the United States of America,) belonging to said United States of America * * *.” The term “grand larceny,” as it is used in the Habitual Criminal Act, embraces those cases of larceny where, in the previous conviction, there was allegation and proof of the value of the property stolen showing it to have been in excess of $15 and a conviction for such offense. (See People v. Sarosiek, 375 Ill. 631, 633.) In the case at bar the indictment adequately alleged a former conviction for grand larceny. Defendant’s plea of not guilty raised an issue as to the former conviction, requiring the State to sustain the burden of proving it. The judgment finds that defendant had formerly been convicted of the crime as charged in the indictment. It is well established that the record imports verity and cannot be contradicted except by other matter of record. In the absence of a bill of exceptions we have no means of ascertaining the character of the offense in fact proved as a former conviction. See People v. Berger, 396 Ill. 97, 99.

It is further contended that it was error to permit both counts of the indictment in the Federal case to be alleged in the indictment in the present case; that the first count of the Federal indictment, charging a breaking and entering with intent to commit larceny, had been dismissed by the government, and defendant had pleaded guilty only to the second count thereof charging theft of government property, as shown by the certified copy which defendant seeks to have this court consider; and that the recitation of such dismissed count in the present indictment was prejudicial to defendant. There is no merit in the position. The former indictment in its entirety forms a part of the record in the former conviction, the use of which is expressly permitted by the statute. Ill. Rev. Stat. 1947, chap. 38, par. 603.

Defendant next contends he was not sentenced to incarceration in the penitentiary on the former conviction. To support this contention he again points to his certified copy of the Federal judgment, which recites that defendant, having been found guilty, “is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for the period of three years, together with Fine of $200.00 and Costs.” It is true, as urged by defendant, that actual imprisonment in the penitentiary for the prior offense is a prerequisite to the imposition of aggravated punishment upon conviction of a subsequent offense. But such imprisonment was fully alleged in the present indictment, and by its verdict the jury found that defendant was previously convicted as alleged in the indictment. The verdict is not insufficient for failing to expressly find that defendant was sentenced to and was actually incarcerated in the penitentiary. It is presumed that sentence was imposed in the absence of proof to the contrary, and it was unnecessary for the verdict to find actual incarceration. (People v. Meier, 3 Ill.2d 29.) If, in fact, the defendant was not imprisoned for the offense the burden was upon him to establish such fact. Since there is nothing properly before this court but the common-law record, it must be taken as speaking the truth. Even if the certified copy of the proceedings in the Federal court showed that the conviction did not result in imprisonment in the penitentiary, it could not prevail over matter properly appearing in the record. People v. Owens, 397 Ill. 166.

Defendant insists finally that the indictment fails to allege that the building, which defendant was charged with breaking and entering, was owned by the United States or by a citizen of Illinois; and that the present prosecution affects the property of the United States and is therefore beyond the jurisdiction of Illinois courts. We have considered the arguments made by defendant, and find they are not of sufficient merit to warrant discussion. We conclude that defendant was sentenced in conformity with the Habitual Criminal Act, and that no error has been shown in the record.

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

judgment affirmed.


author: Mr. Chief Justice Kringbier

text:
    (No. 33988.
    Clarence Regner et al., Appellants, vs. The County of McHenry et al., Appellees.

      Opinion filed November 26, 1956.

      Richard F. Babcock, of Chicago, and Wirriam M. Carrorr, Jr., of Woodstock, for appellants.
    Don A. Wicks, State’s Attorney, of Woodstock, (C. RussERR Arren, of counsel,) for appellees.
   Mr. Chief Justice Kringbier

delivered the opinion of the court:

Clarence and Estelle Regner brought suit in the circuit court of McHenry County, praying for an injunction to restrain the county and its zoning enforcing officer from enforcing a zoning ordinance against their property. The court upheld the validity of the ordinance, and dismissed the complaint for want of equity. Plaintiffs appeal directly to this court on the ground that a constitutional question is involved.

As a nonconforming use, the plaintiffs presently operate a fishing resort, where boats are leased to fishermen in a residential area on the east shore of Pistakee Bay. The bay is a part of Pistakee Lake, which lies to the north of it. The lake, in turn, is part of a general resort area in northeastern Illinois commonly known as the “Chain-O-Lakes Region.” In 1951 plaintiffs purchased a tract of land, about eleven acres in extent, fronting on the south side of a well-traveled county road a short way off the southern end of the bay. Part of the property abuts on a channel which flows from the bay under a bridge on the county road, and into a pond or lake known as Mud Lake. Plaintiffs desire to transfer their business to the new location, which apparently is well known as a good fishing spot. In addition to renting rowboats for fishing purposes, they wish to provide accommodations for serving meals and soft drinks to their customers.

The land is located in an unincorporated area zoned as an “F” Farming District. The uses permitted, in addition to farming, include roadside stands offering for sale products produced on the premises; riding stables; race tracks; dog kennels; mining, loading and hauling of sand and gravel; picnic grounds and recreational camps (not including business facilities); polo and other athletic fields; gun clubs; and private or fraternal club houses. The leasing of fishing boats, or the conducting of a fishing resort, not being expressly permitted, is prohibited by the ordinance.

About three and one-half acres of the land in question is slough and lowland, the rest being wooded and rolling. Except for some grazing by cattle among the trees, the property has never been used for farming purposes. Adjoining it to the south and east is a public fee golf course with a clubhouse at which liquor and meals are served to the public. On the west of plaintiffs’ property, immediately across the channel, there are about 725 acres of land used for hunting and fishing purposes by a private hunting club known as “Sports Unlimited.” At this club alcoholic beverages are sold and fishing boats are maintained for the use of the members in the channel next to plaintiffs’ property and south of the bridge on the county road. West of the hunting club, and on the same side of the county road about a half mile from plaintiffs’ property, there is a bulk milk distributing station which receives milk in trucks, processes it, and distributes it. A stable advertising horses for sale is located next to the dairy. Seven-tenths of a mile to the east of plaintiffs’ property, and across the county road on the north, there is a gravel and stone crushing plant.

The properties across the road and directly north of plaintiffs’ property border on the bay, and are improved with residences of substantial' value. These homes face the bay, those nearest to the plaintiffs’ property being back from the county road 200 to 300 feet. Although there are about six fishing resorts within the area of the bay, plaintiffs’ present operation is the only one for at least a mile and a half in either direction from the property in question. The public now fishes in the channel off the bridge and along the county road near the plaintiffs’ proposed new location.

It appears from the plat and testimony in the record, therefore, that the county road separates the properties now used for residential purposes from those presently devoted to golf, hunting, fishing and commercial purposes. The area between the road and the bay is occupied by residences, while the plaintiffs’ land is situated across the road and next to the golf course and hunting area. The record indicates that the highest and best use of the property is for recreational purposes, particularly for a fishing resort. The evidence is in conflict, however, on whether neighboring residential properties would be depreciated in value. Plaintiffs argue that their property is characterized by the adjoining uses; and that any loss in residential value which might be caused by commercial operations has already occurred by virtue of such uses already existing in the neighborhood. The defendants, on the other hand, contend that plaintiffs’ land is characterized by the residential area across the road and along the shore of the bay, that there is room for a fair difference of opinion concerning the reasonableness of the ordinance as applied to this property; and that under familiar rules of constitutional law the legislative judgment must be sustained.

The issue presented in the trial court and upon this appeal is whether the restriction as applied to plaintiffs’ property bears any rational relation to the public health, safety, morals, or welfare. In determining this issue it is necessary to consider not only the plaintiffs’ property itself but also the character of the properties in the immediate neighborhood. It is evident from the record that the land in question is largely unsuited for residential development, and that the uses of surrounding properties are essentially commercial and recreational. A consideration of the uses existing on the same side of the county road, namely golfing, hunting, fishing and commercial activities, conclusively shows them to be of the same general character as that of the resort which plaintiffs propose to establish.

It is true that some distance across the road there are residences, but it does not follow that the residential character of that area should control the use to which plaintiffs’ property may be put. The evidence shows that the road is not a mere residential lane, but a well traveled thoroughfare, used by commercial vehicles as well as by hunters, fishermen, golfers and general traffic. It could have been considered the logical boundary line for the purpose of ascertaining the particular area or neighborhood the character of which is relevant in deciding the propriety of the restriction. We think it is clear that the plaintiffs’ property is characterized, not by the residential area beyond the road, but by the commercial and recreational area of which it is a component part. See Offner Electronics, Inc. v.Gerhardt, 398 Ill. 265, 275.

Granting that the value of the residential properties may be depreciated to some extent by the use of nearby properties for hunting and fishing resorts or commercial establishments, the damage has already occurred by virtue of existing nonresidential uses of that character. In view of such present uses adjacent to and near plaintiffs’ property, it is difficult to see how their proposed fishing resort could itself cause substantial damage. In Taylor v. Village of Glencoe, 372 Ill. 507, certain property zoned for residential use was virtually surrounded by commercial and industrial uses, although there were residences in the immediate vicinity. In holding the ordinance invalid as it applied to the particular property we observed, with reference to depreciation in value of nearby residential property: “These encroachments have been present for many years and any damage that may be caused by an additional commercial or industrial use is negligible.” (See, also, People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill. 321, 335.) Essentially the same situation prevails in the case at bar. It is clear that the use of property cannot be restricted or limited merely because neighboring property owners so desire, or because they think it might protect the value of their residences. (Offner Electronics, Inc. v. Gerhardt, 398 Ill. 265.) To be a valid exercise of power, a zoning restriction must have some rational connection with the promotion of public health, safety, morals, or welfare. We can see none here. The zoning ordinance of McHenry County, insofar as it applies to plaintiffs’ property, is arbitrary and therefore void.

The decree of the circuit court is reversed and the cause remanded, with directions to enter a decree awarding plaintiffs the relief sought.

Reversed and remanded, with directions.


author: Mr. Justice Schaeeer

text:
    (No. 34079.
    Paul L. Myers, doing business as American Taxi Co., et al., Appellees, vs. Roy F. Cummins, Director of Labor, Appellant.

      Opinion filed November 26, 1956.

      Latham Castle, Attorney General, of Springfield, (William C. Wines, Raymond S. Sarnow, and A. Zola Groves, of counsel,) for appellant.
    Ralph T. Smith, of Alton, for appellees.
   Mr. Justice Schaeeer

delivered the opinion of the court:

The question here is whether the plaintiffs were employers of certain taxicab drivers under the Unemployment Compensation Act. The Director of Labor found that they were. The circuit court of Madison County reversed, and the Director appeals.

The question arose when the Director of Labor made assessments against plaintiffs for unemployment contributions, with penalties. It was agreed that if the plaintiffs were in fact employers of the taxicab drivers the Director’s assessment was correct. Each plaintiff would then have had six or more employees, as required by the act.

The city of Alton licensed Paul Myers and Harold Myers separately to operate taxicabs in the city. They owned approximately four taxicabs each, and although they remained individual proprietors of their enterprises, they shared the same trade name, offices and other facilities. Thus organized they would enter, as the American Taxi Company, into agreements with drivers for the operation of their taxicabs. For simplicity’s sake we shall refer to these agreements as the agreements of the Company.

The Company had a standard form contract. While it is not clear that the form was always used, the testimony of both plaintiffs shows that oral agreements were essentially the same as the written agreement. The written agreement, entitled “Taxicab Lease Agreement,” provides that the Company will keep the vehicles in safe operating condition; that it will keep liability insurance on them, and that-the driver will be indemnified by the Company for any liability arising out of their operation. It further provides that the driver agrees to abide by all operating rules and regulations of the Company, to accept such passengers as the Company presents to him for transportation, and to collect all fares for the operation of the taxicab. The Company agrees to replace parts and to make all necessary repairs and to have the taxicab greased and the oil changed as often as necessary. The contract is terminable by either party on one day’s notice in writing. In case of breach the Company can without notice terminate the lease and take possession of the vehicle wherever found.

The drivers were not required to guarantee any specific rental. The agreement was that their fares, exclusive of tips, were to be divided equally with the Company. There is conflict in the testimony as to whether the division was to be made after a full deduction by the driver of his operating expenses, such as gas, oil and flat tires, or whether the drivers were required to pay half such costs themselves.

The testimony further discloses that the Company would, on occasion, specify the gas stations where gas was to be bought to the exclusion of all others; that the drivers were not permitted to hire others to drive the cabs, or to use the cabs in any other business. There was a strict rule against drinking on the job and the testimony of Paul Myers shows that he would follow drivers suspected of violating this rule.

The cabs were equipped with radios, but there were no meters. The city of Alton taxicab ordinance provides that no one shall be charged more than 50 cents per person within the city limits. The Company fixed a 25-cent zone, a 50-cent zone, and, for journeys outside the city limits, a 75-cent zone. The testimony shows that the drivers, whether they were required to or not, would report their destination on the radio and that they expected to be told what fare to collect. The drivers would also report “light” after the completion of a run. They were permitted to pick up fares on the street but it was the opinion of one driver that the Company could tell if additional fares were picked up by the gas consumption. The drivers were required to join a union, and cases of reckless driving, discourtesy, overcharges and accidents were reported to the union steward for disciplinary action. These appear to have been union rules and not requirements imposed by the Company.

The cabs were all the same color. The drivers were not required to wear a uniform but the Company had badges for drivers who wanted them. The Company maintained an office, furnished cab stands and a waiting room. Dispatchers and other staff were employed. The Company had a listing in the classified section of the telephone directory in the name of Paul Myers. The drivers were required to make a one-dollar contribution from their portion of the fares on each shift towards the maintenance of these facilities.

Section 206 of the Unemployment Compensation Act defines “employment” as follows: “* * * ‘employment’ means any service * * * performed by an individual for an employing unit * * (Ill. Rev. Stat. 1955, chap. 48, par. 316.) Plaintiffs contend that the drivers were not performing service for the Company, and in support of this contention they rely on Parks Cab Co. v. Annunzio, 412 Ill. 549. That case, like this one, involved taxicabs, but there the resemblance ceases. In that case the company was engaged in the business of leasing licenses to operate taxicabs and not in the business of operating cabs. It was completely divorced, in fact as well as in form, from the operations of cabs.

In the Parks case the income of the company did not depend upon the operation of any cabs; in this case, unless the cabs operate, there is no income. In the Parks case the drivers were not required to accept passengers presented to them by the company; in this case the written contract requires the driver to accept such passengers as the Company presents to him for transportation.

In the Parks case the company provided no cab stands, waiting room, or dispatcher; in the present case the Company maintains a waiting room and hires dispatchers. The plaintiffs contend that the existence of these facilities does not argue that the drivers were performing services for them because the facilities were maintained by the drivers themselves on a cooperative basis, each contributing one dollar per shift to this end. But there is no suggestion in the record that the drivers had any voice in the leasing of waiting rooms or cab stands, in the hiring of the dispatchers, or in the hiring of other drivers. Nor is it suggested that the drivers were responsible for rent for the waiting room or the salaries of dispatchers. It is impossible to regard the drivers as principals in a co-operative venture.

Plaintiffs also argue that the drivers were not performing service for the Company within the act because they were not being paid any compensation. This is so, they say, because the only money which passed moved from the drivers to the Company. But the statute deals with economic realities, (Parks Cab Co. v. Annunzio, 412 Ill. 549, 553,) and the mechanics of compensation are not material. (Van Ogden, Inc. v. Murphy, 390 Ill. 133.) The drivers received remuneration, and that is what is significant. Crouch v. Murphy, 390 Ill. 112; cf. Salt Lake Transportation Co. v. Board of Review, 5 Utah 2d 87, 296 P.2d 983.

Section 212 makes an exception to the definition of employment contained in section 206. So far as material here, section 212 provides that service performed by an individual for an employing unit shall be deemed to be employment unless and until proved in a proceeding where the issue is involved that “(A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact.” Ill. Rev. Stat. 1955, chap. 48, par. 322.

The facts fail to show that the drivers were free from control or direction over the performance of such services. In the Parks case the company by its contracts expressly renounced any control, direction or influence over the drivers; in the present case the written agreement between the Company and the drivers expressly provides that the driver will abide by any and all operating rules and regulations of the Company. And quite apart from the agreement the facts disclose elements of control wholly absent in the Parks case. The Company would, from time to time, specify gas stations from which gas was to be taken. The drivers were forbidden to use the cabs otherwise than in the Company’s business. Within the maximum fixed by ordinance, the Company fixed the rates to be charged. Whether the drivers were required to abide by these rates or not, the evidence shows that they did abide by them. They reported their destinations and they expected to be told what rates to collect. Plaintiffs contend, however, that the most essential factor of control, that over the amount of the drivers’ earnings, is missing. It is true that the taxicabs were not equipped with meters but the mere fact that the system employed by the plaintiffs may have allowed a certain leeway for dishonesty does not demonstrate an absence of control. Gas consumption and the presence of a radio in each cab are important factors of control at this point.

The plaintiffs correctly point out that subparagraph A of section 212 of the act does not contemplate that any control, however slight, will satisfy the statutory definition of employment. The question is one of degree. (Schatz, Pollack Woolen Co. v. Murphy, 384 Ill. 218.) As to the quantum of control which will result in a failure to establish the exception of section 212, this court has several times stated that the existence of general control or of the right to general control is sufficient even though the details of the service are left to individual judgment. (Ross v. Cummins, 7 Ill.2d 595; Murphy v. Daumit, 387 Ill. 406.) In the present case there was not only general control, but extensive control over details as well.

Findings of fact of the Director of Labor should not be disturbed unless against the manifest weight of the evidence. (Mohler and Pratt v. Department of Labor, 409 Ill. 79; Outboard Marine and Manufacturing Co. v. Gordon, 403 Ill. 523; Local No. 658 v. Brown Shoe Co. 403 Ill. 484.) In the present case the Director’s determination is entitled to finality, unless shown to be against the manifest weight of the evidence. No such showing has been made.

The judgments of the circuit court of Madison County are reversed and the decisions of the Director of Labor are confirmed.

Judgments reversed; decisions confirmed.


author: Mr. Justice HershEy

text:
    (No. 34097.
    Oliver G. Schroeder, Exr., vs. John Benz et al., Appellants. — (Ida Schroeder et al., Appellees.)

      Opinion filed November 26, 1956.

      P. C. OtwELL, of Belleville, and J. Max Mitchell, of West Frankfort, for appellants.
    Howard F. Boman, and Francis D. Conner, both of East St. Louis, for appellees.
   Mr. Justice HershEy

delivered the opinion of the court:

This appeal from the circuit court of St. Clair County involves the construction of the will of Lizzie Hammann, who died on September 16, 1954.

The principal question is whether the following paragraph of her will directed a per capita or per stirpes division:

“Fourth: — After the payment of such just debts, legacies, funeral expenses and cost of Administration I give, devise and bequeath to my Brothers and Sisters, Ida Schroeder, Minnie Hirstein, Alex Benz, Lizzie Krump, and to the children of my Deceased Brother, Henry Benz, who are as follows: (John Benz, Robert Benz, Daisy Hielman Benz) and Emma Mueller and Katie Hammann, all the rest, residue and remainder of my Estate both real and personal of whatsoever kind and character and wherever situated should be sold and distributed in equal share, share and share alike to be their sole and absolute property.”

Emma Mueller and Katie Hammann were not related to the testatrix by blood. The latter died before the testatrix, and since she was not a descendant of the testatrix, her gift lapsed. (Ill. Rev. Stat. 1953, chap. 3, par. 200.) There is a dispute as to whether this share thereby remained a part of the residuary estate or whether it passed as intestate property of the testatrix.

Also at issue is whether the foregoing paragraph gives the executor power to sell the property.

The trial court held: (x) a per stirpes division was intended; (2) the Katie Hammann share passed as intestate property of the testatrix; (3) the executor has no authority to sell the property. A freehold being involved, the case comes directly to this court.

First, is the division to be per capita (with each of Henry Benz’s children receiving a share equal to that of the other named beneficiaries) or per stirpes (with the children together receiving a share equal to that given each of the others) ?

The law regarding a limitation to- named persons and the children of another has undergone an evolution in this State. (See Carey and Schuyler, Illinois Law of Future Interests, sec. 275.) In the early case of Pitney v. Brown, 44 Ill. 363, decided in 1867, it was held, somewhat reluctantly, that the English precedents required a per capita distribution in a case of this nature. This view was reaffirmed in McCartney v. Osburn, 118 Ill. 403. But a change occurred in 1921, when this court directed a per stirpes division in a case involving devises to seven named children and the children of a deceased daughter also named. (Dollander v. Dhaemers, 297 Ill. 274.) Since that time, we have consistently favored per stirpes distribution. (Palmer v. Jones, 299 Ill. 263; Beal v. Higgins, 303 Ill. 370; Dahmer v. Wensler, 350 Ill. 23; Condee v. Trout, 379 Ill. 89.) Hence, it is settled in this State that where there is a devise to named persons and the children of another, a per stirpes division is to be favored in the absence of a contrary intention manifested by the will.

A preference for per stirpes distribution is an instance where that construction is favored which more nearly conforms to the general laws of inheritance. (See Cahill v. Cahill, 402 Ill. 416; Dahmer v. Wensler, 350 Ill. 23.) By statute in Illinois, intestate property descends per stirpes. (Ill. Rev. Stat. 1955, chap. 3, par. 162.) It is proper that courts take note of this legislative policy when construing ambiguous provisions of wills. Moreover, we believe this is what would be intended in the ordinary case were the matter called to the testator’s attention. Where, as here, there is a devise in the form “to A, B, C, D, and the children of E,” there is a strong indication that a five part division is intended, with the children sharing one of the parts. If per capita division were contemplated, it would seem that the children would not be described collectively, but would be named individually, the same as the others who are to receive a full share.

However, it is argued in this case that the children were in fact individually named, and that this is sufficient to overcome the presumption discussed above. But it is apparent that the naming of the children is subordinate to their designation as a class, “children of my Deceased Brother, Henry Benz.” The names of the children, enclosed by parenthesis, are merely an amplification of the primary designation, and in context it would seem the testatrix considered them as representatives of her brother, Henry. The logical inference is that she was treating her brothers and sisters equally, and since Henry had predeceased her, the share allotted to him was to go to his children.

Second, is the lapsed share of Katie Hammann to be considered a part of the residue or as intestate property ?

The law regarding the devolution of a lapsed portion of a residuary estate is not uniform. (For an exhaustive survey of the authorities, see 28 A.L.R. 1237, 139 A.L.R. 868, and 36 A.L.R.2d 1117.) The majority view is that such a lapsed gift passes as intestate property of the testator rather than as a part of the residue for the benefit of the other residuary beneficiaries, unless a contrary intention is indicated by the will. There are Illinois cases in accord. (Dorsey v. Dodson, 203 Ill. 32; Dickinson v. Belden, 268 Ill. 105; Strohm v. McMullen, 404 Ill. 453.) But this doctrine has had an uneasy career, having been criticized repeatedly, (see, e.g., In re Dunster, 1 Ch. (Eng.) 103; Aitken v. Sharp, 93 N.J.Eq. 336; Wright v. Wright, 225 N.Y. 329; see also Atkinson on Wills, 2d ed., pp. 784-5; 21 Mich. L. R. 585; 10 N.Y.U.L.Q.R. 97,) and on occasion flatly rejected. West v. West, 89 Ind. 529; Corbett v. Skaggs, 111 Kan. 380; In re Moloney, 15 N.J. Super. 583.

Illustrative of the criticism is the following comment from an early English case: “I think the effect of it is to defeat the testator’s intention in almost every case in which it is applied.” (In re Dunster, 1 Ch. (Eng.) 103.) And in Corbett v. Skaggs, 111 Kan. 380, we find the following: “We regard the rule that lapsed shares of deceased residuary legatees shall be treated as intestate property as in direct conflict with the one to which this court is definitely committed, that the actual purpose of the testator, so far as it can be ascertained, must be given effect. The presumption against intestacy of any part of the estate is a means of carrying out this policy which is disregarded by taking lapsed legacies out of the residue, for the benefit of those who would inherit from the decedent in the ab- ' sence of a will. The reasons for allowing lapsed specific legacies to fall into the residue apply with equal force in favor of allowing all the residue to go to the surviving residuary legatees in case of the death of one of them, instead of turning over a part of it to persons for whom other provision had been made, or who had not been referred to in the will at all. The statement sometimes made in support of the latter practice — that the share of a deceased legatee cannot fall into the residue, because it is itself a part of the residue — appears rather to play upon words than to point out any real difficulty.”

Yet while the courts have been reluctant to change, the legislatures have not. A New Jersey case points out that the legislatures of Pennsylvania, Ohio, Rhode Island and New Jersey, in recognition of the error inherent in the English rule which causes the property to devolve as in the case of intestacy, have passed statutes to remedy the situation. In re Moloney’s Estate, 15 N.J.Super. 583.

As of last year, Illinois has been added to the list of those States where the doctrine has been abrogated by statute. A 1955 amendment to the Probate Act provides that where a residuary gift lapses and no provision is made in the will for that contingency, the property passes to the remaining residuary beneficiaries in proportion and upon estates corresponding to their respective interests in the residue. Ill. Rev. Stat. 1955, chap. 3, par. 200.

Since the testatrix here died prior to the enactment of the statute, it is not controlling. However, we are convinced that the same rule should be applied. For, although not directly applicable, the Illinois statute does reflect a legislative policy which should be taken into consideration.

In addition, the rule which favors partial intestacy in a case of this nature is not well founded. “It would seem to be a not unreasonable view that, prima facie, by a gift of all his residuary property to designated persons a testator intends that whatever assets happen to fall within the provision shall go to those persons as being the ones preferred by him in any event as against the whole world * * *•” (36 A.L.R.sd 1117, 1118.) “By the very fact of the appointment of general residuary legatees, the ordinary testator manifests his desire that all his earthly possessions pass to beneficiaries designated in his will.” In re Moloney’s Estate, 15 N.J. Super, 583, 586-7.

Moreover, it is well settled that there is a presumption against intestacy in whole or in part. “This presumption is so strong that unless a contrary intention is clearly expressed, it will be presumed that the testator intended to dispose of all of his estate by his will, and leave no part of it as intestate property.” Glaser v. Chicago Title and Trust Co. 393 Ill. 447, 456.

For the reasons stated, the following Illinois cases are hereby overruled so far as they are inconsistent with the holding of this case: Dorsey v. Dodson, 203 Ill. 32; Dickinson v. Belden, 268 Ill. 105; Strohm v. McMullen, 404 Ill. 453.

Third, is the executor authorized to sell the property?

Despite deficiency in syntax, the provision does expressly provide for the sale of the property and the distribution of the proceeds to those entitled. Moreover, by necessary implication, this duty devolves upon the executor. (Cf. Sartain v. Davis, 323 Ill. 269.) Any other reading would frustrate the obvious intention of the testatrix that the distribution problem be solved by a sale and division of the proceeds.

We conclude (1) the will directs a per stirpes division, (2) the lapsed share of Katie Hammann passes as a part of the residuary estate, and (3) the executor is authorized to sell the property and divide the proceeds as the will directs.

The decree of the circuit court of St. Clair County is affirmed in part and reversed in part. The cause is remanded with directions to proceed in conformity with this opinion.

Affirmed in part and reversed in part, and remanded, with directions.


author: Mr. Justicl Hlrshly

text:
    (No. 34109.
    Stanley J. Williams et al., Appellees, vs. The Village of Schiller Park, Appellant.

      Opinion filed, November 26, 1956.

      KlnnLTh G. Mlylr, of Des Plaines, (Marshall S. Howard, of counsel,) for appellant.
    Samull T. Lawton, Jr., of Chicago, for appellees.
   Mr. Justicl Hlrshly

delivered the opinion of the court:

The village of Schiller Park appeals from a judgment of the circuit court of Cook County declaring a village zoning ordinance unconstitutional and void in its application to the plaintiffs’ property.

The property, zoned residential, is a vacant four-acre tract, roughly rectangular in shape, which the plaintiffs wish to devote to light industrial uses.

Adjoining the property on the east and north is a residential area containing 15 blocks of single-family dwellings. But on the south is a tract used for light industrial purposes, and to the west is a railroad switching yard.

In arguing against the residential classification, the plaintiffs stress the following: the proximity to the industrial areas on the south and west, the substantial depreciation in market value caused by the restricted classification (estimated at $60,000 by their expert witness,) and the undesirability of residences located near a railroad switching yard.

The village, on the other hand, emphasizes the extensive residential development on the east and north (containing 245 homes,) and also relies upon evidence showing that single-family residences could profitably be located on the subject property, that nearby houses would suffer a market loss were the residential classification removed from that property, and that the only means of access to the property in question is through the residential area, it being the opinion of expert witnesses for the village that the utilization of the property for light industrial uses would increase traffic hazards in the residential area.

As appears from the foregoing, there are factors which point in each direction. This court will therefore uphold the ordinance. For if there is room for fair difference of opinion concerning the reasonableness of a zoning classification, the legislative judgment of the municipal authorities should be respected. (Herzog Building Corp. v. City of Des Plaines, 3 Ill.2d 206; Miller Bros. Lumber Co. v. City of Chicago, 414 Ill. 162.) “It is axiomatic that zoning must begin somewhere and end somewhere,” (DeBartolo v. Village of Oak Park, 396 Ill. 404, 411;) so, even though property touches on industrially zoned areas, a residential classification is not thereby necessarily precluded. Because of the large residential area adjoining the instant property, the fact that the only means of access to the property is through that area, the evidence of loss in market value likely to result to nearby residences from the requested classification change, and the feasibility of using the property for residential purposes, we cannot say the village acted unreasonably in drawing the line where it did.

Finally, the plaintiffs question whether the village complied with statutory requirements in zoning this property. They point out that the area was originally zoned residential by a general ordinance which provided that all land annexed to the village was to be residential until differently classified by amendment. They insist that the classification was imposed without notice and hearing as required by statute. (Ill. Rev. Stat. 1955, chap. 24, pars. 73 — 2, 73 — 8.) But even if it be assumed they are correct in this contention, all doubt was removed by a subsequent ordinance specifically made applicable to the subject property and passed after proper notice and a public hearing. And that this action by the village was prompted by a request of the plaintiffs for a reclassification, which request was withdrawn before final action taken, does not detract from the validity of the ordinance. For there is nothing in the statute which requires the public hearing to be on petition of the property owner. It is sufficient that notice be published and a public hearing be held granting to all interested persons an opportunity to be heard.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.


author: Mr. ChiEE Justice KlingbiEl

text:
    (Nos. 34124, 34125, Cons.
    Sara Pickus et al., Appellants, vs. Board of Education of the City of Chicago et al., Appellees.—Shirley Lens, Appellant, vs. Board of Education of the City of Chicago et al., Appellees.

      Opinion filed November 27, 1956.

      Antonow & Weissbourd, and P. Raymond Marks, Jr., both of Chicago, (Joseph P. Antonow, Bernard Weissbourd, and David J. Lester, of counsel,) for appellants.
    Prank R. Schneberger, of Chicago, (Prank S. RighEimer, James W. Coeeey, and John T. Mehigan, of counsel,) for appellees.

      Alex Elson, of Chicago, (Willard J. LassERS, and Aaron S. WolEE, both of Chicago, and Duane, Morris & HeckschER, of Philadelphia, Pennsylvania, of counsel,) for The American Friends Service Committee, Inc., amicus curiae, and John Eigtenberg, of Chicago, for Illinois State Federation of Teachers, amicus curiae.

   Mr. ChiEE Justice KlingbiEl

delivered the opinion of the court:

These appeals question the validity of section 30b of “An Act in relation to State finance,” (Ill. Rev. Stat. 1955, chap. 127, par. 166b,) which withholds compensation from State employees who refuse to sign the loyalty affidavit therein set forth. Also presented is the question of its applicability to teachers in the public schools of Chicago.

Two complaints, for injunction and declaratory judgment respectively, were filed in the circuit court of Cook County against the Chicago Board of Education and its members. The respective plaintiffs are certain Chicago school teachers who refuse to execute the affidavit. They allege that because of such refusal they have been or will be denied compensation; that they are employees of the city and hence are specifically excluded by the terms of the statute; and that in any event the statute is unconstitutional and void. After consolidating the two cases the circuit court sustained defendants’ motions to dismiss; and the plaintiffs having elected to stand on their complaints, judgments were entered accordingly. The plaintiffs appeal directly to this court, constitutional questions being involved.

Section 30b was enacted in 1955. It provides as follows: “No employee of the State of Illinois, or any political subdivision, agency or instrumentality thereof, but excluding cities, villages, incorporated towns, townships and counties, shall receive compensation or expenses from any appropriation which has been heretofore made, or which shall hereafter be made until such person has on file with his or her employing authority the following affidavit signed under oath:

State of Illinois ) r SS United States of America J

I,-do swear (or affirm) that I am not a member of nor affiliated with the communist party and that I am not knowingly a member of nor knowingly affiliated with any organization which advocates the overthrow or destruction of the Constitutional form of the government of the United States or of the State of Illinois, by force, violence or other unlawful means.

(Signed)-

-(seal)

Notary Public”

The contention that plaintiffs are excluded from application of the section, which must be considered first, rests upon the proposition that the Board of Education is a part of the city. It is argued that in view of the close relation of the school board to the city, and the respects in which the legislature has treated it differently from other public school systems in the State, school teachers in Chicago are employees of the city itself and therefore need not file the affidavit in order to receive pay.

It is true, as the plaintiffs point out, that the Board of Education is appointed by the mayor of Chicago with approval of the city council, that the treasurer of the city acts as treasurer of the board, that title to school property is held in the name of the city in trust for the use of schools, and that bond issues must be approved by the city council and countersigned by the mayor and comptroller. But such incidents do not obliterate the existence of the school district as a different corporate entity. (Board of Education v. Upham, 357 Ill. 263.) Bonds issued by authority of the statute, for example, are obligations of the Board of Education, not of the city (Mathews v. City of Chicago, 342 Ill. 120); and the board has its own limit of indebtedness under the constitution, which is not affected by the city’s indebtedness. (Board of Education v. Upham, 357 Ill. 263.) The two corporations have separate and distinct governmental purposes. The legislature created the board as a body politic for education of the youth, which is one of the paramount objects of government, and expressly provided that “No power vested in the board or in any of its officers, agents or employees shall be exercised by the city council.” Ill. Rev. Stat. 1955, chap. 122, par. 34 — 16.

There can be little doubt that for some purposes the statutory relation which the Board of Education bears to the city of Chicago is sufficient to prevent their treatment as bodies completely separate and distinct from each other. Thus in People ex rel. Schlaeger v. Jarmuth, 398 Ill. 66, relied upon by plaintiffs, this court upheld the validity of the Municipal Employees’ Annuity and Benefit Fund Act, which required the city to raise funds by taxation for the purpose of paying annuities and benefits to employees of the Board of Education. It was urged that the act was void because it required a tax to be levied by one municipality for the use and benefit of another separate and distinct municipality. In rejecting the contention we concluded that the Board of Education is a part of the municipal government of the city “to such extent” that the act did not contravene section 9 of article IX of our constitution. In justification of this result, however, it was further observed that taxes had been levied and collected under the act for more than a quarter of a century, during which time important monetary and human rights had accrued, and that such passage of time created a strong presumption against its invalidity. We do not think that the constitutional decision in the Jarmuth case is decisive in determining the question of construction involved here. Plaintiffs have suggested no reason for a legislative distinction between school teachers in Chicago and those elsewhere, insofar as the present requirement is concerned, nor can we perceive any. The statute should be given a reasonable interpretation, in order that its true intent and meaning may be given effect. It must be construed in recognition of the fact that the city and the Board of Education are essentially different bodies; that each has its peculiar functions to perform, and that neither can perform the functions of the other. As we observed in Schreiner v. City of Chicago, 406 Ill. 75, “although the territory of the city and the school district is coterminous, and some of the officers perform dual duties, they are two separate organizations. The city of Chicago is a municipal corporation, and the statute likewise provides that board of education is a ‘body politic and corporate.’ ” We conclude there is not such identity of organization as to warrant classifying teachers employed by the Board of Education as employees of a city, within the meaning of the exclusion in the present statute. We are thus brought to a consideration of the plaintiffs’ constitutional objections.

It is contended the requirement in question violates Federal and State guaranties of due process of law. Under each constitutional provision the legislature is prohibited from depriving any person of “life, liberty, or property” without due process of law. It is evident from the face of such provision that before a party can properly invoke the due-process clause he must show wherein the particular law deprives him of life, liberty, or property. The section in question here prescribes the execution of an affidavit as a condition of receiving compensation from the State. In effect it sets one of the terms with which one must comply who desires to obtain or continue public employment. The United States Supreme Court has pointed out that “the loss of a particular position is not the loss of life or liberty,” (American Communications Association v. Douds, 339 U.S. 382, 409, 94 L. ed. 925, 949,) and that “an unlawful denial by state action of a right to state political office is not a denial of a right of property or of liberty secured by the due process clause.” (Snowden v. Hughes, 321 U.S. 1, 7, 88 L. ed. 497, 502.) There is no indication that the present statute denies compensation for services rendered prior to its effective date or impairs existing contractual rights. The parties, however, have not attempted to show wherein plaintiffs liberty or property are affected or unaffected, but have argued the cases apparently on the assumption that the due-process clause is applicable. Moreover, a careful examination of authorities relied upon respectively reveals a similar approach by the United States Supreme Court in situations factually comparable to that in the case at bar. (See Slochower v. Board of Education, 350 U.S. 551, 100 L. ed. 692; Wieman v. Updegraff, 344 U.S. 183, 97 L. ed. 216; Adler v. Board of Education, 342 U.S. 485, 96 L. ed. 517; Garner v. Board of Public Works, 341 U.S. 716, 95 L. ed. 1317.) We shall therefore proceed upon the ground that the present requirement in some way curtails liberty or takes away property rights.

While it is recognized that government has the power to exclude from public employment communists and others who advocate its violent overthrow, (See Adler v. Board of Education, 342 U.S. 485, 96 L. ed. 517,) requirements of due process are considered applicable to the means adopted to implement the power. A State may validly provide that a person who is knowingly a member of an organization which advocates the overthrow of constitutional government by unlawful means shall not be eligible for public employment. (Adler v. Board of Education, 342 U.S. 485, 96 L. ed. 517.) But a law which disqualifies on the basis of mere membership, regardless of any awareness of the organization’s purpose or character, is said to be arbitrary and void. Wieman v. Updegraff, 344 U.S. 183, 97 L. ed. 216; Chicago Housing Authority v. Blackman, 4 Ill.2d 319.

Relying upon the Wieman case, the plaintiffs contend the affidavit is objectionable for lack of scienter. They also urge that it falls within the holding in the Slochower case. We think neither argument can be sustained. As to the first, the affidavit’s negation is limited to knowing membership in subversive organizations. We cannot accept plaintiffs’ suggestion that the word “knowingly” refers to knowledge of whether the affiant is a member, rather than knowledge of the character of the organization. The provision must be given a reasonable, common-sense interpretation. The affiant obviously would know the fact of his own membership. As reasonably construed the affidavit negates only membership in organizations known to have the proscribed character. It does not affect persons who might have innocently formed or continued affilation with a subversive organization, unaware of its nature or purpose. The required affidavit is also to be distinguished from the statute held void in the Slochower case. In deciding that the claim of privilege against self-incrimination was not a sufficient ground or reason for disqualifying one from public employment the United States Supreme Court pointed out that “No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege.” The situation here is quite different. The subject matter of the affidavit is clearly one upon the basis of which the State may determine the fitness of its employees, (Adler v. Board of Bducation, 342 U.S. 485, 96 L. ed. 517,) it is limited to present membership or affiliation, and no claim of self-incrimination is involved.

Plaintiffs further complain that there is no provision for a hearing. The argument loses sight of the nature of the requirement. The statute does not purport to designate a crime or offense for which punishment is imposed. It merely prescribes a standard of eligibility. In Garner v. Board of Public Works, 341 U.S. 716, 95 L. ed. 1317, an ordinance required every city employee to execute an affidavit disclosing any past or present membership in the communist party. In upholding its validity the Supreme Court pointed out that a city or State is not disabled “from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment. The affidavit requirement is valid.” The negation required in the case at bar, being limited to present membership or affiliation, is even less subject to objection. Its content is similar to that questioned in Gerende v. Board of Supervisors, 341 U.S. 56, 95 L. ed. 745, wherein a law was summarily upheld which required, as a prerequisite to having his name appear upon the ballot, that every candidate for public office file an affidavit that he is not a person engaged in the attempt to overthrow the government by force or violence, and that he is not knowingly a member of an organization engaged in such an attempt.

An affidavit requirement much broader in scope than the present one was held valid in American Communications Association v. Douds, 339 U.S. 382, 94 L. ed. 925. That case involved the noncommunist affidavit provision contained in section 9(h) of the Labor-Management Relations Act. The section requires, as a condition of a labor union’s receiving the benefit of facilities provided by the act, that each of its officers file an affidavit stating that he is not a member of or affiliated with the communist party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the government by force or other illegal methods. In a lengthy opinion the court disposed of numerous attacks on constitutional grounds, and concluded as follows (339 U.S. at 415, 94 L. ed. at 952-953) : “Clearly the Constitution permits the requirement of oaths by officeholders to uphold the Constitution itself. The obvious implication is that those unwilling to take such an oath are to be barred from public office. For the President, a specific oath was set forth in the Constitution itself. Art 2, § 1. And Congress has detailed an oath for other federal officers. Obviously, the Framers of the Constitution thought that the exaction of an affirmation of minimal loyalty to the Government was worth the price of whatever deprivation of individual freedom of conscience was involved. All that we need hold here is that the casting of § 9(h) into the mold of an oath does not invalidate it, if it is otherwise constitutional. We conclude that § 9(h) of the Labor-Management Relations Act, as herein construed, is compatible with the Federal Constitution and may stand.” It is no objection to the present requirement that the consequences of refusal are limited to a termination of pay, and that the employment relationship as such is not expressly severed. If under its provisions an employee may continue his work but without receiving compensation, as the plaintiffs contend, the choice is that of the employee. There is nothing therein that compels him to do so. The natural result of prohibiting compensation, of course, is to terminate the employment itself. The law is obviously a reasonable means of accomplishing its purpose of eliminating communists and other subversive persons from public employment. We conclude that it does not violate the due-process clause.

In this court the plaintiffs contend that section 30b is invalid because it arbitrarily discriminates between the various political subdivisions of the State and their employees, including some and excluding others, without a reasonable basis for the classification. We find, however, that this ground of invalidity was not raised by the plaintiffs in the trial court. It is therefore not available here, and we do not pass upon the contention.

Plaintiffs assert that section 30b is an unwarranted denial of the right to speak. They fail to point out, however, the respect or way in which they consider such right to be involved here. The statute simply provides for the execution of an affidavit of fact. It does not purport to limit or restrict the right of employees to speak or assemble. The arguments and authorities relied upon are obviously not applicable to the statute questioned in this case. The claim that it constitutes a bill of attainder is likewise without any merit. Bills of attainder are legislative acts inflicting punishment on certain persons without judicial trials. No punishment is inflicted by a statute which merely prescribes standards of qualification or eligibility for public employment. Garner v. Board of Public Works, 341 U.S. 716, 95 L. ed. 1317.

It is urged that the subject of section 30b is not expressed in the title “An Act in relation to State finance,” and that it therefore violates section 13 of article IV of the Illinois constitution. Section 30b prescribes a condition which must be fulfilled before public employees may receive payment from State appropriations. Its subject obviously concerns the expenditure or disbursement of State funds; and while its provisions may also result in determining the character of employees on the public payroll, the basis of such effect is a financial one. The subject of an act means the matter or thing forming the groundwork of the act, and may include many provisions which are germane to it and are such that if traced back will lead the mind to the subject as the generic head. (Department of Public Works and Bldgs. v. Spanogle, 327 Ill. 122.) In the case cited we pointed out that “An act having a single, general subject indicated in the title may contain many provisions, however diverse, if they are not inconsistent with or foreign to the subject and may be considered in furtherance of it by providing for the method and means of effectuating it.” We further observed that “There has been a general disposition to construe this constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which the provision was adopted.” To render a provision in the body of a statute void as not embraced in the title, it must be one which is incongruous, or which has no proper connection with the title. (People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600.) The present provision prescribes conditions under which certain payments may be made from appropriations. We cannot say it is so inconsistent with or foreign to the matter of State finances as to render it void under section 13 of article IV of our constitution.

Nor can we agree with the contention that section 30b is incomplete and amends statutes relating to civil service employment, teachers’ tenure, and pay periods of State employees, without inserting such statutes at length therein. Its provisions are complete in themselves. They do not purport to deal with teachers’ tenure, civil service matters, or pay periods. They simply require the filing of an affidavit before compensation may be received from State appropriations. The purpose of the constitutional provision requiring the amended section of a law to be inserted at length in the new act is to avoid the necessity of having to make reference to a prior law to determine and give meaning to an amendatory act. (Co-ordinated Transport, Inc. v. Barrett, 412 Ill. 321.) The meaning of the present section is clearly ascertainable from its provisions alone. The fact that section 30b may have an incidental effect upon various general laws in relation to State employees does not render it void. It is only where a law professes to be amendatory, or is amendatory in its nature, that the constitutional provision applies. (People ex rel. Egan v. City of Chicago, 310 Ill. 534.) As we observed in Co-ordinated Transport, Inc. v. Barrett, 412 Ill. 321, “Any new provision of law may in some sense be said to amend and change the prior system of laws, and whenever there is an irreconcilable conflict between two acts the later one must prevail. To the extent of the conflict the later act amends the earlier one by implication, and, if the later act is not amendatory in form and perfect in itself, it is not within the prohibition of the constitution. It is not necessary, when a new act is passed, that all prior acts modified by it by implication shall be re-enacted and published at length.”

We conclude that section 30b is constitutional, and that the circuit court properly dismissed the complaints. The judgments are therefore affirmed.

Judgments affirmed.


author: Mr. Justice Bristow

text:
    (No. 34113.
    Evelyn R. Wolford, Appellee, vs. The City of Chicago, Appellant.

      Opinion filed November 26, 1956.

      John C. Mllaniphy, Corporation Counsel, of Chicago, (Sydney R. Drbbin, Harry H. Pollack, and Harry A. Cooplr, of counsel,) for appellant.
    Irving S. Blrman, of Chicago, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court:

This is an appeal from a declaratory judgment of the circuit court of Cook County holding certain frontage consent ordinances of the city of Chicago to be invalid insofar as they apply to a parcel of real estate owned by Evelyn R. Wolford, the appellee. The court has certified that the validity of a municipal ordinance is involved and that the public interest requires the appeal to be taken to this court.

The property in question is zoned for “business” under the existing city zoning ordinance, a classification which permits its use for the operation of a gasoline service station. Appellee has, however, been prevented from utilizing her land for such purpose because of her failure to acquire the consent of adjoining property owners, as required by ordinances dealing with the conditions under which property may be used for a gasoline station, and under which tanks for the storage and sale of flammable liquids may be installed. The adoption of the frontage consent ordinances preceded the enactment of the zoning regulation which expressly provided that it was cumulative and not intended to nullify existing regulations on the subject matter. Appellee’s complaint was based on alternative theories: (1) that the frontage consent ordinances were invalid as an unlawful delegation of the legislative power; (2) that the provisions of the zoning law nullified or replaced such ordinances; or (3) that the frontage consent ordinances are unreasonable and arbitrary in their application to the subject property. The judgment of the court granting relief to appellee is based upon the theory last stated and the primary contention of the city on this appeal is that the court erred in this respect.

Appellee’s property is vacant and is located at the northeast corner of Seventy-ninth Street and Cregier Avenue in the city of Chicago. It has a frontage of approximately 133 feet on Seventy-ninth Street and 100 feet on Cregier Avenue, with a 16-foot public alley abutting in the rear. Cregier does not intersect with Seventy-ninth Street and carries traffic only in a northerly direction; Seventy-ninth Street, on the other hand, has two-way traffic, which was described as heavy, and is serviced by public bus transportation. For approximately two blocks on either side of appellee’s property, both sides of Seventy-ninth Street are being used for business purposes, which include several automobile parking lots, paint stores, dry cleaning shops, restaurants, drug stores, taverns and various specialty shops and offices. In many instances the upper floors of the buildings housing such businesses are used for residential purposes. North of the alley across the rear of appellee’s premises, Cregier Avenue and the streets paralleling the alley are improved with buildings used for apartment and residential purposes.

From the facts detailed it is to be seen that the site of the proposed service station is within an area not only zoned for but also devoted to business purposes. Under circumstances both similar and comparable, this court has found that the building and operation of a gasoline station will not be inconsistent with the character of such a district, and have held frontage consent ordinances to be arbitrary and oppressive insofar as they prevented such a business on a site within the district. (Koos v. Saunders, 349 Ill. 442; People ex rel. Deitenbeck v. Village of Oak Park, 331 Ill. 406. Also compare Spies v. Board of Appeals, 337 Ill. 507.) The city seeks to distinguish the cited decisions on the basis that garages and other filling stations were located in the districts there under consideration. We are of the opinion, however, that any distinctions are removed by the fact that the business district under consideration contains automobile parking lots, cleaning plants, paint stores, restaurants and other businesses which, in varying degrees, present traffic and safety hazards comparable to those attending the operation of a gasoline station. We agree with the court below, therefore, that the frontage consent ordinances in question are arbitrary and unreasonable in their application to appellee’s property and that the operation of the proposed station would not be detrimental to the business district in question.

The result we have reached makes it unnecessary to treat upon the other points raised. For the reason stated the judgment of the circuit court of Cook County is affirmed.

r , Judgment (affirmed.


text:
    (No. 34088.
    The People of the State of Illinois, Defendant in Error, vs. Ernest Louis Lindstrom, Plaintiff in Error.

      Opinion filed November 26, 1956.

      Singer & Singer, of Highland Park, (Paul S. Stern, of counsel,) for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and Robert C. Nelson, State’s Attorney, of Waukegan, (Fred G. Leach, Edwin A. Strugala, and Kenneth R. Shorts, of counsel,) for the People.
   Mr. Chief Justice Klingbiel

delivered the opinion of the court:

After trial by jury in the circuit court of Lake County, Ernest Louis Lindstrom was found guilty of having knowingly received stolen property. His punishment was fixed at imprisonment in the county jail for a period of 30 days, and a fine of $1000. Upon writ of error in the Appellate Court for the Second District the judgment was affirmed. (People v. Lindstrom, 9 Ill. App.2d 570.) Defendant now brings the record to this court by writ of error for further review. The sole contention is that the evidence is insufficient to prove guilty knowledge.

The record discloses that during the year 1954 defendant operated a tavern at which one Donald Duffy was a frequent customer. Duffy, who was employed as a stock clerk and checker at a National Tea Company food store, had stolen a set of keys to the store, procured a duplicate key to be made, and then returned the originals. He thereafter used the duplicate key to enter the store after closing time and steal various quantities of goods. In February, 1954, Duffy suggested to defendant that he could supply the latter with cigarettes at $1.50 per carton, a price substantially below that paid by defendant to his regular supplier. When defendant inquired if any risk was involved, or if they were stolen, Duffy assured him that they were not stolen and that the company he worked for had an oversupply. Duffy then went to the store of his employer, entered with his stolen key, and took a supply of cigarettes which he delivered to defendant at the stated price. On several occasions thereafter, including that of June 1, 1954, for which defendant was indicted, Duffy brought cigarettes, meat, coffee, and butter to the tavern, and delivered them to defendant at prices substantially less than the regular market prices. It further appears that defendant was acquainted with the National Tea Company store, had often bought groceries there, and knew Duffy was employed there as a clerk. The deliveries from Duffy were made at night, after the store’s closing time, and usually by way of the back door of defendant’s tavern. The relevant testimony is fully set forth in the opinion of the Appellate Court, and it is unnecessary to relate it in detail here.

It is not disputed that the articles had been stolen and that defendant received them. He testified, however, that he did not know they were stolen, and he insists the evidence fails to show he had such knowledge. The contention was given careful consideration by the Appellate Court, which pointed out that guilty knowledge may be sufficiently shown by proof of attending facts and circumstances, even though positive proof is lacking. We have examined the record, and conclude the Appellate Court was correct in holding that the verdict was warranted by the evidence. Since that court’s opinion fully answers the arguments now made in this court, it is unnecessary to prolong this opinion by another review of the authorities. The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Schaefer

text:
    (No. 34144.
    Marshall C. Foreen et al., Appellants, vs. William G. Stratton et al., Appellees.

      Opinion filed November 26, 1956.

      Frederic D. Houghtering, F. Raymond Marks, Jr., Wirriam F. Price, and John B. Worfe, all of Chicago, for appellants.
    Latham Castre, Attorney General, of Springfield, (Wirriam C. Wines, Raymond S. Sarnow, and A. Zora Groves, of counsel,) for certain appellees, and John F. Tyrrerr, and Eucrid Louis Tayror, both of Chicago, for other appellees.
   Mr. Justice Schaefer

delivered the opinion of the court:

In each of two cases the plaintiffs sought declaratory judgments that section 8 — 13 and related sections of the Election Code, (Ill. Rev. Stat. 1955, chap. 46, par. 8 — 13,) are unconstitutional. Each complaint alleged that the Representative Committees of the Republican and Democratic parties had adopted resolutions limiting the number of candidates to be nominated for the office of Representative in the General Assembly so that in the two representative districts involved only three candidates, one of the Republican party and two of the Democratic party, would appear on the ballot at the November election. The complaints alleged that the Election Code, in so far as it authorized this action, violates sections 1 and 7 of article IV, and section 18 of article II of the constitution of Illinois.

The cases were consolidated in the trial court. Upon motion the complaints were dismissed, and plaintiffs appeal.

While the issue presented, in so far as it relates to the particular election involved, has become moot, we have considered the question on the authority of People ex rel. Lindstrand v. Emmerson, 333 Ill. 606. That case, which was reaffirmed in People ex rel. Baird v. Small, 335 Ill. 283, also disposes of plaintiffs’ contentions on the merits. Plaintiffs’ suggestions of alternative methods of dealing with the problem which arose when the direct primary was superimposed upon the constitutional provision for minority representation in the House of Representatives of the General Assembly (article IV, sec. 7,) are matters to be considered by the legislature rather than by this court. Since the Pindstrand case was decided in 1929, section 7 of article IV of the constitution has been substantially revised, but no change was made in the provision dealing with minority representation.

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

Judgment affirmed.


author: Mr. Justice Schalflr

text:
    (No. 34145.
    The City of Lewistown, Appellee, vs. Lewis F. Braden et al., Appellants.

      Opinion filed November 26, 1956.

      ZlmpLl & Kost, of Lewistown, for appellants.
    Lachlan CrissLy, of Lewistown, for appellee.
   Mr. Justice Schalflr

delivered the opinion of the court:

The city of Lewistown initiated a proceeding in the county court of Fulton County for the levy of a special assessment to pay the cost of repaving certain streets. Legal objections were overruled and a jury determined that the assessments against the properties of the objectors did not exceed the benefits and that their properties were not assessed more than their proportionate share of the cost of the improvement. These defendants, who were objectors below, appeal directly from the judgment of confirmation. Ill. Rev. Stat. 1955, chap. 24, par. 84 — 95.

Although the defendants do not challenge the verdict of the jury as to benefits and proportionate share, they raise numerous technical objections to the proceedings of the board of local improvements and the city council, and the steps taken by the commissioner appointed to spread the assessment.

Defendants’ first objection attacks the resolution of the board of local improvements on the ground that the improvement is to be constructed with the aid of another governmental agency, and that section 7 of the Local Improvement Act is therefore applicable. That section provides that where a local improvement “is to be constructed with the assistance of the Works Progress Administration or any other agency of the Federal Government, or other governmental agency, the resolution of the board of local improvements shall set forth that fact and the estimate of cost shall set forth and indicate, in dollars and cents, the estimated amount of assistance to be so provided.” (Ill. Rev. Stat. 1955, chap. 24, par. 84 — 7.) The ordinance adopted by the city council provided that the cost of the improvement ($113,300) should be met “by applying thereto seventy per cent (70%) thereof from the allotment to the municipality of its share of the Motor Fuel Tax collected by the State of Illinois to be applied against the public benefits assessed against the City * * *” and the balance, 30% of the estimated cost, by special assessment against the property benefited. The total cost of the improvement is thus to be borne by special assessment, without the assistance of any other governmental agency. Defendants’ objection arises from a misunderstanding of the nature of a public benefit assessment. When a judgment assessing benefits against the public is entered against a municipality in a special assessment case, it becomes an obligation of the municipality. To satisfy that obligation the municipality makes annual appropriations from available funds to pay the annual installments levied against it. Cf. People ex rel. Toman v. Crane, 372 Ill. 228, 230-233.

The next objection arises from the same misunderstanding. It is that the ordinance constituted an appropriation of money, and is therefore invalid because it was not published in accordance with section 10 — 3 of the Revised Cities and Villages Act. (Ill. Rev. Stat. 1955, chap. 24, par. 10 — 3.) The ordinance was not published, but the difficulty with defendants’ contention is that the ordinance does not make any appropriation. It recites that the State has approved the application by the city of motor fuel tax receipts against the public benefit to be assessed to the extent of 70% of the total cost of the project. The determination of the amount to be assessed against the public rested with the court. This court has held in a case where there was a public benefit assessment levied, that an ordinance for a special assessment need not be published under this provision of the statute requiring the publication of appropriation ordinances. Village of Downers Grove v. Findlay, 237 Ill. 368, 369.

Defendants also urge that the ordinance is invalid because the “Aye” and “Nay” votes were not properly recorded in the journal of the city council, as required by section 9 — 47 of the Revised Cities and Villages Act. The minutes of the meeting at which the ordinance was adopted show that all five aldermen were present. They continue: “Alderman Shaw made a motion, seconded by Alderman Weirauch that the Ordinance be finally passed and adopted as introduced and read. Upon roll call all voted ‘Aye.’ Motion carried.” The city clerk testified that the five aider-men present at the meeting, whom he named, voted “Aye” and that no “Nay” votes were cast. In People ex rel. Anderson v. Chicago and North Western Railway Co. 396 Ill. 466, relied upon by defendants, the ordinance in controversy was defective because the record did not show that there had been a roll call vote. As the court pointed out, the record in that case was consistent with “a viva voce vote which the statute does not permit, and so does not show a roll call as is required.” Here the record shows that there was a roll call.

It is argued that the commissioner appointed to make the assessment did not take a proper oath of office. He took an oath to “make a true and just assessment of the cost of the local improvement * * *.” The record shows that the commissioner made the affidavit of compliance required by section 41 of the Local Improvement Act. (Ill. Rev. Stat. 1955, chap. 24, par. 84 — 41.) Defendants insist that he should have subscribed to the form of oath required of municipal officers generally. (Ill. Rev. Stat. 1955, chap. 24, par. 9 — 89.) The contention is without merit. Apparently no oath was required, (see Ill. Rev. Stat. 1955, chap. 24, par. 84 — 38; cf. par. 84 — 14,) but in any case the commissioner is not an “officer,” within the contemplation of section 9 — 89 of the Revised Cities and Villages Act. He is but “an agent or employee for a single and specific purpose, whose functions are at an end upon the completion of his work.” City of Lawrenceville v. Hennessey, 244 Ill. 464, 466-467.

Defendants contend that the commissioner erred in not personally estimating the public benefit and apportioning the aggregate cost between the city and the property to be benefited, as directed by section 39 of the Local Improvement Act. (Ill. Rev. Stat. 1955, chap. 24, par. 84 — 39.) The distribution of the cost of the improvement between the public and the private property assessed is open for review in the trial court, but the determination of the trial court is conclusive and not subject to review. Ill. Rev. Stat. 1955, chap. 24, par. 84 — 47; City of Belleville v. Miller, 257 Ill. 244, 247; cf. City of Ottawa v. Colwell, 260 Ill. 548.

The commissioner testified that he assessed the properties at the rate of $4 per front foot on streets which were 36 feet wide and $3.35 per front foot on streets 30 feet wide. Properties located on corners were assessed at the full rate on the front street and at one half the rate on the side street. In addition, there was a different rate for properties on streets on the north and west sides of the high school where a different width of paving was provided. The commissioner testified that he made no effort to assess the benefits upon the basis of the uses to which the properties were devoted or their assessed values. A vacant lot was assessed upon the same basis as a lot improved with a house. But he also testified that all of the vacant lots were suitable for building purposes.

Defendants insist that the assessment is invalid because it was made solely on a frontage basis, without regard to benefits. Although it has often been said that a special assessment made solely on a front-foot basis, without regard to benefits, would be invalid, the commissioner is not precluded from talcing front footage into consideration as an element in fixing the amount of the assessment. (City of Monticello v. LeCrone, 414 Ill. 550; City of Belleville v. Miller, 257 Ill. 244; City of Nokomis v. Zepp, 246 Ill. 159.) In City of Nokomis v. Zepp, 246 Ill. 159, this court upheld a front-footage assessment because the commissioner had determined that the benefit to each lot was equal to the exact cost of the improvement abutting the lot. There the commissioner calculated the exact cost of the paving per square yard and then found the exact cost per front foot on each street. In this case the figures of $3.35 per front foot for streets 30 feet wide and $4 per front foot for streets 36 feet wide show a similar differential based upon construction costs. The commissioner made no variation in the assessments between various properties because he believed that there was no significant difference in the benefits to be received. He did deviate, however, from a strict front-foot basis in the case of lots abutting two streets, and this variation recognizes the principle, relied upon by defendants, that the individual assessments should be proportionate to the benefits received.

Defendants’ final contention is that the commissioner was not a “competent” person to make the assessment. Fraud or prejudice is not claimed. It appears that the commissioner was secretary-treasurer of a building and loan association which owned mortgages on seven of the 81 properties assessed. The assessment was fair and impartial, and the interest was too remote to require the commissioner’s disqualification.

The judgment of the county court of Fulton County is affirmed.

Judgment affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 55031.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JERRY L. TARLTON, Appellee.

      Opinion filed March 16, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and John Baricevic, State’s Attorney (Herbert Lee Caplan and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Robert L. Craig, Assistant State’s Attorney, of Belleville, of counsel), for the People.
    Randy E. Blue, Deputy Defender, of the Office of the State Appellate Defender, of Mount Vernon, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Following a bench trial in the circuit court of St. Clair County, defendant, Jerry L. Tarlton, was found guilty of violating section 8(i) of the Illinois Credit Card Act (Ill. Rev. Stat. 1979, ch. 121/2, par. 608(i)). Because the question before us involves only an interpretation of the statute, a complete transcript was not filed. Apparently, however, defendant had used the credit card of another in an unsuccessful attempt to buy a stereo valued above $150. The trial court granted defendant’s motion in arrest of judgment, finding section 8(i) was void for failure to provide a penalty for fraudulent but unsuccessful use. The State appealed under our Rule 603. 73 Ill. 2d R. 603.

Section 8 of the Act, in applicable part, provides:

“A person who, with intent to defraud either the issuer, or a person providing money, goods, property, services or anything else of value, or any other person, (i) uses, for the purpose of obtaining money, goods, property, services or anything else of value a credit card obtained or retained in violation of this Act or without the cardholder’s consent, or a credit card which he knows is counterfeited, or forged, or expired, or revoked, or (ii) obtains money, goods, property, services or anything else of value by representing without the consent of the cardholder that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued, is guilty of a Class A misdemeanor if the value of all money, goods, property, services and other things of value obtained in violation of this Section does not exceed $150 in any 6-month period; and is guilty of a Class 4 felony if such value exceeds $150 in any 6-month period. ***’’ (Ill. Rev. Stat. 1979, ch. 1211/2, par. 608.)

The question before us is what, if any, penalty is provided for violation of subparagraph (i). After appeal was taken in this case, the appellate court in People v. Gibson (1981), 99 Ill. App. 3d 616, decided the identical question.

In Gibson the defendant was convicted of violating section 8(i) of the Act and forgery and was sentenced to concurrent prison terms in accordance with the penalties provided for Class 4 felonies. He appealed from his conviction for the unsuccessful use of a credit card, arguing that section 8 (i) provided no penalty and was therefore a nullity. The appellate court, relying on the former provision of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 17-1) which proscribed this conduct and clearly penalized an attempted fraudulent use as a felony, rejected defendant’s argument and affirmed the conviction. The court stated:

*‘[T] he clear intendment of the legislature was that the penalty provision of section 8 should apply to situations where, as here, the accused was unsuccessful in his attempt to purchase goods or property by the unlawful use of a credit card. We are compelled to conclude that the failure to include additional language such as ‘sought to be obtained’ or ‘attempted to be obtained’ or words of similar import was a legislative oversight, inadvertent omission, or mistake, particularly given the fact that both types of offense proscribed in section 8 are included as part of a single sentence along with the penalty provision. We further believe that, although the legislature inadvertently failed to include this additional language, such words are contained in the statute by fair implication.” 99 Ill. App. 3d 616, 621.

Contrasting with the rationale of the Gibson opinion is the argument offered by the State in its brief filed in this case before Gibson was decided. The State argues that “one who *** obtains nothing has obtained less than $150.” It further argues:

“The legislative scheme is clear. *** [T] he penalty for repeated, but unsuccessful, unlawful use of a credit card subjects the accused to the penalty imposed for a Class A misdemeanor. *** For the greater social harm of *use for the purpose of obtaining’, which use was successful, items exceeding $150 in value in a six-month period, the penalty for a Class 4 felony is imposed.”

We disagree with the State’s view that the “legislative scheme is clear,” at least as it concerns the penalty intended for an attempt to obtain goods valued above $150 in violation of the Act. However, this court must attempt to give effect to the expressed intent of the legislature and avoid constructions of a statute which would render any portion of it meaningless or void. People v. Garrison (1980), 82 Ill. 2d 444, 455; People v. Warren (1977), 69 Ill. 2d 620, 627-28; cf. Cronin v. Lindberg (1976), 66 Ill. 2d 47, 58.

The General Assembly clearly and without ambiguity made the fraudulent use of a credit card a crime regardless of whether goods were actually obtained. For this reason we reject the circuit court’s holding that the alleged failure to expressly determine a penalty renders section 8(i) void. The Act in fact provides for two offenses: A Class A misdemeanor “if the value of all money, goods, property, services and other things of value obtained in violation of this Section does not exceed $150”; and a Class 4 felony “if such value exceeds $150.” Although the defendant stresses the word “obtained” in the quoted phrase to bolster his argument that if nothing of value is “obtained” there is no penalty, we would stress the words “in violation of this Section” and note that unsuccessful use in fact violates subparagraph (i). Rather then viewing this as a failure of the General Assembly to provide a penalty, thus rendering subparagraph (i) meaningless, we would view it as, at its worst, a clear expression of legislative intent to make such conduct unlawful coupled with an ambiguous statement concerning the penalty. The ambiguity, of course, is whether the fraudulent but unsuccessful use is to be punished as a felony as the earlier cited provision of the Criminal Code had done or as a Class A misdemeanor. That ambiguity must be resolved in defendant’s favor. (People v. Hobbs (1981), 86 Ill. 2d 242, 246; People v. Haron (1981), 85 Ill. 2d 261, 277-78; People v. Lutz (1978), 73 Ill. 2d 204, 212.) We accordingly hold that fraudulent use of a credit card, where nothing of value is actually obtained, is a Class A misdemeanor regardless of the value of goods sought to be obtained. This result appears to be consistent with the legislative intent, evinced by amendments ameliorating the penalty for the related inchoate crime of attempt (compare the 1971, 1973 and 1979 statutes on attempt, Ill. Rev. Stat., ch. 38, par. 8-4) so as in most instances to penalize an attempted felony less harshly than the underlying offense.

The record before us indicates that the defendant also made a motion for a new trial which raised issues that the trial court apparently has not yet considered. We therefore reverse the judgment of the circuit court of St. Clair County and remand the cause to that court for consideration of the motion for a new trial and, if it is found to be without merit, to reinstate the conviction of the defendant and sentence him accordingly.

Reversed and remanded, . with directions.