text:
    (No. 57688.
    WILLIAM C. YARGER et al., Appellants, v. THE BOARD OF REGENTS OF REGENCY UNIVERSITIES et al.

      Opinion filed October 4, 1983.

    Rehearing denied December 2, 1983.

      UNDERWOOD and CLARK, JJ., took no part.
    Fred B. Moore, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellants.
    Sue E. Myerscough of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, for appellee Board of Regents of Regency Universities.
    Eugene L. Resnick, Christopher A. Hansen, and Terence J. Coogan, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee Follett College Stores.
   JUSTICE WARD

delivered the opinion of the court:

This is a direct appeal from a judgment of the circuit court of Sangamon County holding “An Act in regard to the retail sale of merchandise by or on the property of State institutions of higher learning” (Ill. Rev. Stat. 1981, ch. 144, par. 251) (the Act) to be unconstitutional. The circuit court’s ground was that the statute was not enacted according to constitutional requirements and thus was void. The direct appeal was brought under our Rule 302(a)(1) (87 Ill. 2d R. 302(a)(1)).

On April 7, 1982, the plaintiffs, William C. and Orval J. Yarger, filed a complaint in the circuit court of Sangamon County. The first count asked that the defendant Board of Regents of Regency Universities (the Board), which operates Illinois State University in Normal, be enjoined from permitting the leasing of space on that campus for use as a bookstore. The second count requested a declaratory judgment that the proposed leasing of certain premises for use as a bookstore would be illegal. The plaintiffs are members of a partnership which owns and operates a retail store selling books and school supplies in Normal. The defendant Follett College Stores (Follett) was subsequently allowed by the circuit court to intervene as the lessee of Illinois State University. The lease was entered into on June 14, 1982, and Follett has operated a bookstore in the student center on the campus since August 17,1982.

The Board filed a motion to dismiss on October 18, 1982, alleging the unconstitutionality of the legislative procedure under which the statute was enacted. The Board’s motion, in which Follett joined, was granted by the trial court. The court determined that the Act, which became effective in 1967, had not been enacted in accordance with section 12 of article IV and section 16 of article V of the Constitution of Illinois of 1870. (Ill. Const. 1870, art. IV, sec. 12; Ill. Const. 1870, art. V, sec. 16.) The former section required, inter alia, that a bill had to be passed by a majority of the members elected to each house before becoming law. The latter section provided for the submission for the Governor’s approval of every bill passed by the General Assembly. The court found that “[t]he enrolled bill reflecting the legislation signed by the President of the Senate and the Speaker of the House and approved by the Governor failed to include material and substantive amendments enacted by the General Assembly and in the form submitted to the Governor for signature was not in the form enacted by the General Assembly.”

The Act was introduced in the House of Representatives of the 75th General Assembly as House Bill No. 195 on January 17, 1967. As introduced, the bill provided:

“Section 1. Thp governing board of a State institution of higher learning 2 may not permit or authorize a retail store carrying any line of general mer3 chandise to be operated by that institution or to be operated on property held 4 or leased for the use of the institution when such an operation can reasonably 5 be expected to be in direct general competition with private retail merchants in 6 the community. This Act does not prohibit the sale by such an institution or 7 on such property of items commonly sold by such institutions on January 1, 8 1967, including but not limited to books, food, beverages and items directly con-9 nected with the operation of the institution.”

The legislative history of the Act as set out in the House Journal shows the following sequence of events: the bill was taken up, read by title, and ordered printed; the bill was referred to the Committee on Higher Education; when printed, the bill was read a second time with an amendment offered by the Committee on Higher Education. The amendment struck “direct” in line 5, struck “on January 1” in line 7, struck “1967” and “directly” in line 8, inserted “research, studies or courses offered at” immediately after “with” in line 9, and struck “the operation of” also in line 9. The amendment was adopted; the bill was transcribed and typed with the adopted amendment, read a third time, and passed by a vote of 157 yeas to 5 nays. The 1967 Senate Journal shows that the bill was read at large a first time and referred to the Committee on Assignment of Bills; the bill was assigned to the Committee on Education, which recommended that the bill “do pass”; the bill was read a second time; the bill was read at large a third time and passed by a vote of 47 yeas and no nays. On April 3, 1967, a printed copy of the bill which was in its original form and did not include the amendment was approved by the Governor and signed by the Speaker of the House and the President of the Senate. In our State, courts have allowed resort to the journals of the two branches of the legislature to show compliance or noncompliance with constitutionally mandated procedures for enacting statutes. (Spangler v. Jacoby (1853), 14 Ill. 297; Neiberger v. McCullough (1912), 253 Ill. 312; see 6 Record of Proceedings, Sixth Illinois Constitutional Convention 1386.) This is commonly referred to as the “journal entry” rule.

On July 1, 1971, our constitution of 1970 became effective. Section 8 of article IV provides, inter alia, that each bill that passes both houses shall be signed by the Speaker of the House and the President of the Senate “to certify that the procedural requirements for passage have been met.” (Ill. Const. 1970, art. IV, sec. 8.) The quoted language, the plaintiffs say, changed our State from one following the journal-entry rule to a jurisdiction applying the “enrolled bill” rule in cases of challenged statutes. Under one version of the enrolled-bill rule, the plaintiff argues here, the signatures on the enrolled bill evidence conclusively that the statute’s procedural enactment has been proper. The enactment’s propriety may not be attacked by resort to the journals or any other evidence. 1 Sutherland, Statutory Construction sec. 15.03, at 410 (4th ed. 1972).

Even if it were to be assumed for sake of the plaintiffs’ argument that our present constitution calls for application of the enrolled-bill rule, the statute here was considered and purportedly adopted by the General Assembly in 1967. Thus it must be examined under the journal-entry rule, which was applicable under the Constitution of 1870. See Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 478; People ex rel. Hanrahan v. Caliendo (1971), 50 Ill. 2d 72, 76-77.

Under the journal-entry rule there is a presumption that a statute signed by the presiding officers of. each branch of the General Assembly and approved by the Governor was enacted in accordance with constitutional requirements. (Illinois Central R.R. Co. v. People (1892), 143 Ill. 434.) This presumption may be overcome by clear and convincing proof that the constitutional procedure was not followed. (Larrison v. Peoria, Atlanta & Decatur R.R. Co. (1875), 77 Ill. 11.) To, the journals may be employed to show noncompliance with constitutionally prescribed procedures. (Neiberger v. McCullough (1912), 253 Ill. 312; Cohn, The Process of Legislation, 1963 U. Ill. L.F. 27, 30.) As we noted, the journals do not show compliance with the constitutionally mandated procedure for enactment. To the contrary, they present clear and convincing evidence that the bill which passed both houses was not the bill which the Governor approved. The amendment by the House of Representatives was omitted. The journals do not affirmatively show that the bill was amended again so it cannot be said that the original version of the bill may have been restored. (Although not constitutionally required in this State, amendments are printed fully in the journals as a matter of course (Cohn, The Process of Legislation, 1963, U. Ill. L.F. 27, 30).) It is undeniable that the Act signed by the Governor did not contain the amendatory language. It cannot be presumed that the Governor would have approved the Act if the amendment had been included. (Cf. People ex rel. Reitz v. DeWolf (1871), 62 Ill. 253.) Further, the House of Representatives’ amendment of the original bill demonstrates that the bill was unacceptable to it as originally proposed.

The plaintiffs argue that the journal entries are not to be considered conclusive for the reason that either the House or the Senate could have again amended the bill to effectively rescind the House amendment. We note, however, that had the House amendment been rescinded by the Senate prior to passage by the Senate, the bill would have to return to the House for another vote. Section 12 of article IV of the Constitution of 1870 required that the journal of each house record the vote on the final passage of all bills. (Ill. Const. 1870, art. IV, sec. 12.) Since the House journal does not show a second vote following passage by the Senate, there exists a conclusive presumption that the Senate approved the bill as received from the House. 1 A. Sutherland, Statutory Construction sec. 15.05, at 415 (4th ed. 1972).

The plaintiffs say that there is the possibility that the House rescinded its amendment prior to voting to pass the bill and that it passed as originally proposed. Records, however, from the Secretary of State’s office, which included a printed copy of House Bill No. 195 as received by the Senate on March 8, 1967, were received which show that the bill which passed the House did contain the amendment. It is clear that the amendment was not rescinded and that the bill approved by the Governor was not the bill passed by the General Assembly.

The plaintiffs argue, however, that the records of the Secretary of State should not be considered, as it has long been held that the journals are the only evidence admissible to show noncompliance with constitutional requirements for enactment of a statute. (People ex rel. Sellers v. Brady (1914), 262 Ill. 578.) It has been observed that “there is no way to impeach the accuracy of the journal[s].” (G. Braden and R. Cohn, The Illinois Constitution: An Annotated & Comparative Analysis 153 (1969).) Here, however, no attempt has been made to impeach the accuracy of the.journals by reference to the Secretary of State’s records. Resort to those records was made simply to confirm that the journal entries were complete. Those records support the accuracy of the House journal by showing that the House amendment was never rescinded.

Although it has been said in a dictum that the journals cannot be aided or contradicted by other evidence of any kind (Sangamon County Fair & Agricultural Association v. Stanard (1956), 9 Ill. 2d 267), there are decisions showing that records of the Secretary of State have been examined for evidence of the journals’ accuracy. The situation here is similar to that in People ex rel. Oliver v. Knopf (1902), 198 Ill. 340, where the enrolled bill contained a material difference from the bill which had apparently been passed by both houses of the General Assembly. There was no indication when the original bill had been changed, and the relator contended that the court should presume that the Senate, where the bill was introduced, had amended the bill to the form in which it was presented for the Governor’s signature before passing it and sending it to the House. The court declined to do so, noting that the presumption that a statute became law pursuant to statutory requirements is not irrebuttable. The court observed that it had unsuccessfully sought evidence to support the relator’s contention in the “documents, papers or records pertaining to the bill *** in the office of the Secretary of State.” (198 Ill. 340, 347.) Too, in Chicot County v. Davies (1882), 40 Ark. 200, which the plaintiffs cite for the proposition that the silence of the journals as to a given matter is not conclusive that the matter did not occur unless the constitution affirmatively requires the particular matter to be printed in the journals, the court held that the records of the Secretary of State were admissible as evidence of noncompliance with mandatory provisions of the Constitution. See also 1 A. Sutherland, Statutory Construction sec. 15.07 (4th ed. 1972).

There is a basic concession by the plaintiffs in their brief: “There is no question that the Journals suggest that on February 22, 1967, an amendment was passed with language that is not contained in the Bill as it was ultimately signed by the speakers and approved by the Governor.”

What this court said in People ex rel. Dezettel v. Lueders (1918), 283 Ill. 287, 291, is applicable:

“It requires no argument to show that if a bill were passed by both branches of the General Assembly and a different bill under the same number and title were presented to the Governor for his signature and approved by him *** its invalidity would be established by showing the published law was not the law enacted by the General Assembly as shown by the house and senate journals.”

(See also Kostelnak v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1980), 84 Ill. App. 3d 616, 621 (Stamos, J., specially concurring).) The Governor’s signature cannot infuse legal validity into a bill which was not approved by the legislature.

The plaintiffs advance Meister v. Carbaugh (1923), 310 Ill. 486, for the proposition that a court may decline to consider the constitutionality of the statute and urge that we do so here. The circumstances here differ significantly from those in Meister. There the court was asked to declare, that a statute relating to a civil service system was unconstitutional. In refusing to consider constitutionality, this court observed that when a statute has long been regarded as constitutional and that important rights have been established under it, a court may refuse to consider its constitutionality. The court noted that the statute involved had been enacted some 13 years earlier and had been acted upon since its enactment. It was noted that the statute had been amended by the General Assembly and had for a number of years constituted a part of the State’s legislative policy. The constitutional defect complained of was simply that the bill and the amendment to it had not been printed before the vote was taken on its final passage. This court said that the provision was intended only to prevent surprise and the enactment of undesirable legislation and, considering that the statute had been applied without challenge for 12 years, the constitutional objection would not be considered.

For the reasons given, the judgment of the circuit court of Sangamon County is affirmed.

Judgment affirmed.

UNDERWOOD and CLARK, JJ., took no part' in the consideration or decision of this case.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH JUSTICE MORAN,

license: Public Domain

text:
    (No. 57289.
    MICHAEL R. NOTARO, SR., Appellant, v. NOR-EVAN CORPORATION, Appellee.

      Opinion filed October 21, 1983.

    Rehearing denied December 2, 1983.

    WARD and SIMON, JJ., took no part.
    MORAN, J., dissenting.
    McDermott, Will & Emery, of Chicago (Wilber H. Boies and N. Rosie Rosenbaum, of counsel), for appellant.

      Fox and Grove, Chartered, of Chicago (Alan L. Unikel, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Nor-Evan Corporation, appealed from the order of the circuit court of Cook County denying its motion to dismiss the action for declaratory judgment filed by plaintiff, Michael R. Notaro, and to require plaintiff to proceed to arbitration of certain claims made by defendant. In a Rule 23 order (87 Ill. 2d R. 23), the appellate court reversed (107 Ill. App. 3d 1168), and we allowed plaintiff’s petition for leave to appeal (87 Ill. 2d R. 315).

In plaintiff’s complaint, it was alleged in count I that plaintiff sold his 90% of the outstanding stock of the National Bank of North Evanston to defendant’s predecessor in interest. Under the purchase agreement, plaintiff assumed a contingent obligation to rebate a portion of the purchase price of the stock based on certain “loss items,” including “problem loans.” The agreement detailed the procedures to be followed by the buyer with respect to the identification of, and efforts to collect, the “problem loans.”

Plaintiff alleged that article IV of a supplemental agreement executed by the parties required defendant, within 90 days of the December 31, 1975, closing, to provide plaintiff with a list, prepared by a “national” firm of certified public accountants, of potential problem loans; that defendant did not furnish him with a copy of that list until June 15, 1977; that under article IV of the supplemental agreement, defendant was required to provide a second list of problem loans by December 31, 1976, and failed to furnish that list until October 30, 1978; that defendant breached the provisions of article IV by failing to use its best efforts from January 1, 1976, through December 31, 1978, to collect potential problem loans; and that defendant is asserting a claim based on the “problem loans” provisions of the agreement. The complaint asks that a declaratory judgment be entered that plaintiff has been “discharged from all contractual duties and obligations” to defendant.

In count II plaintiff alleged that defendant has advised him that it intends to initiate arbitration proceedings. Plaintiff asks that a hearing be held pursuant to section 2 of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 102) and that the court enter judgment holding that there is no valid and enforceable arbitration agreement between the parties.

Defendant moved to dismiss and to compel arbitration. The circuit court, holding that the subject matter of the present action was not within the scope of the arbitration provision of the agreement, denied defendant’s motions.

During oral argument before this court, we raised, sua sponte, the question whether the circuit court order was an appealable order and requested the parties to submit briefs. It appears that the appellate court, analogizing an order to compel or deny arbitration to an order granting or denying a temporary injunction, has held such orders to be appealable under Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)), which in pertinent part provides:

“An appeal may be taken to the Appellate Court from an interlocutory order of court:
(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; ***.”

See Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App. 3d 536; School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145.

Title 28 U.S.C. section 1292(a) (1976) provides:

“The courts of appeal shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States *** granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” This section has also been interpreted to permit appeals from orders granting or refusing a stay of proceedings pending arbitration. (C. Itoh & Co. (America) Inc. v. Jordan International Co. (7th Cir. 1977), 552 F.2d 1228, 1230 n.2; Zell v. Jacoby-Bender, Inc. (7th Cir. 1976), 542 F.2d 34, 35-36.) We hold that the order denying defendant’s motion to compel arbitration was an appealable order.
Paragraph B of article VIII of the agreement, as amended, provides the procedure for determining “Problem Loans.” Although count I of the complaint contains a number of allegations which are conclusional in nature, it alleges failure to comply with paragraph B in that plaintiff was not furnished copies of lists of potential problem loans and that defendant did not cause the bank to use its best efforts to collect such loans. Paragraph C of article VIII provides in pertinent part:
“C. The amount of the ‘Loss Items’ shall be equal to the sum of:
* * *
(ii) the total amount due and owing to the Bank on the Problem Loans described in Paragraph B of this Section VIII.”

Paragraphs F and G provide:

“F. If, at any time, the Purchaser has any claim or claims against the Seller pursuant to Paragraph C of this Section VIII, the Purchaser shall promptly notify the Seller thereof, in writing, specifying the amount and nature of such claim or claims. Thereafter, the Seller may object to any such claim or claims by giving written notice thereof to the Purchaser within thirty (30) days after receipt from the Purchaser of notice of such claim or claims. If the Seller shall fail so to object within said period of thirty (30) days, such failure shall constitute an acceptance by the Seller of liability for such claim or claims. If the Seller shall object to any such claim or claims and such objection is not resolved between the parties within sixty (60) days after the date on which such objection is received by the Purchaser, or such longer period as the parties may both agree on, then the arbitration procedure set forth in Paragraph G of this Section VIII of this Agreement shall be followed and the award rendered by the Arbitrator shall be conclusive and binding on all of the parties concerned. For any claim or claims accepted by the Seller or for any claim or claims that the Seller is determined to be liable pursuant to said arbitration procedure, the Seller shall make payment as provided for in Paragraph D of this Section VIII as is required by the circumstances.
G. In the event that pursuant to Paragraph F of this Section VIII the Seller shall have advised the Purchaser of any objection to any claim or claims made by the Purchaser pursuant to Paragraph C of this Section VIII of this Agreement which is not resolved to the mutual satisfaction of the Purchaser and the Seller within the period of sixty (60) days or such longer period as is agreed on by the parties as provided in Paragraph F of this Section VIII of this Agreement, then, in such event, the following arbitration procedure shall be used: Upon the request of either the Seller or the Purchaser, the then President of the Chicago Bar Association shall select a nationally recognized firm of certified public accountants to act as Arbitrator. Within ten (10) days after the selection of the Arbitrator, or such extended period as shall mutually be agreed upon by the Seller and the Purchaser and the Arbitrator, the Arbitrator shall render a written decision concerning said objections and send copies thereof to the Seller and the Purchaser. The decision of the Arbitrator shall be binding and conclusive on all of the parties concerned. Any cost incurred for the services of the Arbitrator shall be shared equally by the Seller and the Purchaser.”

The circuit court held that the question whether defendant had complied with the contract within the time specified was not within the scope of the arbitration provision and denied defendant’s motion. In reversing, the appellate court held that the circuit court erred in holding that the question whether defendant had breached the agreement was for the court, and that the dispute was within the scope of the arbitration agreement.

Plaintiff contends that the arbitration agreement provides for the technical disputes concerning the loans to be resolved by experts, i.e., certified public accountants, and that the parties did not, by entering into the agreement, waive judicial resolution of the legal issues presented. He argues that the arbitration provision is limited to resolution of the amount and nature of loss item claims and that the authority of the arbitrator does not encompass the legal issues concerning defendant’s prejudicial failure to comply with the terms and provisions of the agreement. It is defendant’s position that the appellate court correctly held that it was improper to consider the merits of plaintiff’s contention concerning the alleged breach and that those issues as well as the question of amounts involved in the respective claims were subject to arbitration.

The Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.) in pertinent part provided:

“Sec. 1. Validity of arbitration agreement. A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any contract ***.” Ill. Rev. Stat. 1979, ch. 10, par. 101.
“Sec. 2. Proceedings to compel or stay arbitration.
(a) On application of a party showing an agreement described in Section 1, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.
(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
* * *
(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.” Ill. Rev. Stat. 1979, ch. 10, pars. 102(a), (b), (e).

Hi Security Mutual Casualty Co. v. Harbor Insurance Co. (1979), 77 Ill. 2d 446, 449-50, the court said:

“The long established rule, enunciated in Ross v. Watt (1854), 16 Ill. 99, is that ‘In construing instruments of submission to arbitration, courts always give as large a construction to them, as the words of the instrument and the intentions of the parties, drawn from their expressions, will warrant,’ 16 Ill. 99, 102. See also Podolsky v. Raskin (1920), 294 Ill. 443.”

In Security Mutual it was contended that arbitration could not be compelled because the agreement between the parties had terminated. In rejecting that argument the court said:

“Security argues that, in order to decide the appeal from the interlocutory order compelling arbitration, it was necessary that the appellate court determine whether, at the time of the occurrence out of which liability arose, there was an arbitration agreement in force between the parties. Simply stated, the argument is that the arbitration clause cannot exceed the scope of the reinsurance agreement, and before it can be determined whether the dispute was arbitrable, it must be determined whether the agreement was in force and effect when Bertero’s cause of action arose.
We do not agree. Acceptance of Security’s contention would require resolution of the merits of the cause prior to reaching the threshold question and the sole question presented by this appeal — whether under the agreement between the parties the dispute was subject to arbitration. Whether Harbor’s claim is meritorious is not the issue; if under the language of the agreement its claim is arbitrable, it is arbitrable whether valid or invalid.
We hold that under the provisions of the agreement the dispute between Security and Harbor is ‘in connection with’ the agreement between them and under its provisions was subject to arbitration. In determining the validity of Harbor’s claim the appellate court exceeded the scope of review and, in so doing, erred.” 77 Ill. 2d 446, 450-51.

Paragraphs F and G of article VIII of the agreement provide for an objection by the plaintiff “to any such claim or claims” and, in the event that the objection is not resolved, provides for arbitration. The reference in paragraph G is “to any claim or claims made by the Purchaser ***.” Neither paragraph F nor G contains any provision which limits the arbitration procedure to objections based solely on grounds which are within the expertise of certified public accountants. The language “any objection to any claim or claims” is as broad as the provision in Security Mutual for the arbitration of disputes “in connection with this agreement.” We perceive no basis to hold, as contended by plaintiff, that the provision that the arbitrator to be selected is a certified public accounting firm, limits the arbitrator’s authority to resolve “any objection to any claim.” For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed.

WARD and SIMON, JJ., took no part in the consideration or decision of this case.

JUSTICE MORAN,

dissenting:

In my opinion the trial court order on review was not appealable, and I, therefore, respectfully dissent.

In my view today’s decision extends the right of appeal under Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)). The court’s conclusion, that the order denying defendant’s motion to compel arbitration constituted an appealable order, is founded upon a misreading of the cases cited in support of the conclusion.

In School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, a case in which I concurred, the appeal was from a trial court’s denial of a combined motion by defendant to proceed to arbitration and to stay any further proceedings. There the court held, “The application was for a stay order, injunctive in nature, and its denial was in effect the denial of an interlocutory injunction. Consequently, such order was appealable ***.” 68 Ill. App. 2d 145, 152-53.

In Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App. 3d 536, the defendants filed a combined motion to compel arbitration and to stay any further proceedings. The motion was allowed and the plaintiff appealed. On the basis of Del Bianco, the court stated, “We believe an order granting a stay of proceedings is in effect the granting of a preliminary injunction which is appealable pursuant to Supreme Court Rule 307(a)(1).” 14 Ill. App. 3d 536, 539.

The majority opinion admits that the two Federal cases cited in support of its position were appeals from orders “granting or refusing a stay of proceedings pending arbitration.” 98 Ill. 2d at 271.

This is not the background of the present case; defendant’s motion to dismiss plaintiff’s complaint and to compel arbitration never sought a stay order, nor was one ever allowed or denied. The trial court, after studying the parties’ memorandum in support of their positions and listening to oral argument, denied defendant’s motion to dismiss and ordered defendant to file its answer to plaintiff’s complaint within 28 days. It is from this order that the defendant appealed.

It is basic law that where a court lacks jurisdiction in a proceeding it cannot be acquired by the litigant’s consent or agreement. I would, therefore, reverse the judgment of the appellate court, on the ground that it was without jurisdiction to hear the appeal, and remand the cause to the trial court for further proceedings.


author: JUSTICE WARD JUSTICE SIMON,

text:
    (Nos. 57313, 57315.
    FRANK FAGIANO, Appellee, v. THE POLICE BOARD OF THE CITY OF CHICAGO et al., Appellants.—RICHARD W. BASTIAN et al., Appellees, v. THE PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Appellants.

      Opinion filed October 4, 1983.

    Rehearing denied December 2, 1983.

      SIMON, J., dissenting.
    Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for appellants.
    John D. Moss, of Chicago, for appellee Frank Fagiano.
    Kenneth Ditkowsky and Jay Contorer, of Ditkowsky & Contorer, of Chicago, for appellee Richard Bastían.
    Epton, Muffin, Segal & Druth, Ltd., of Chicago (Saul A. Epton, Gerald B. Muffin, and Michael E. Kerpan, of counsel), for appellee Norman C. Byttow.
    Rick Allan White, of Chicago, for appellee John Green.
    J. Peter Dowd and Stephen B. Horwitz, of Jacobs, Burns, Sugarman & Orlove, of Chicago, for amicus curiae Chicago Fire Fighters Union Local No. 2.
   JUSTICE WARD

delivered the opinion of the court:

These appeals, at one time consolidated but severed before oral argument, are treated together here for purposes of opinion. The cases involvé the validity of a residence requirement for certain municipal employees contained in an ordinance of the city of Chicago, and the validity of a Chicago police department city residence rule based upon the ordinance. In Bastían v. Personnel Board, No. 57315, the personnel board of the city ordered the discharge of two firemen, Richard Bastían and Norman C. Byttow, and an engineering technician of the city’s water department, John Green, for violating chapter 25, section 30, of the Chicago Municipal Code, which requires civil service employees to be “actual residents” of the city. The circuit court of Cook County, reviewing the decisions upon individual petitions by Bastían, Byttow and Green for writs of certiorari, reversed the personnel board’s decisions. The circuit court considered that the decisions were not contrary to the manifest weight of the evidence, but held that the ordinance was unconstitutionally vague. The three cases were consolidated for appeal and the appellate court affirmed. 108 Ill. App. 3d 672.

In Fagiano v. Police Board, No. 57313, a Chicago police officer, Frank Fagiano, was discharged for violations of several police department rules, under one of which he was required “to actually reside” within the city limits. The circuit court of Cook County, acting upon a complaint by Fagiano for administrative review, sustained the Chicago police board’s findings that he had violated the residency rule and another rule which is not considered on this appeal. The appellate court, however, in a Rule 23 order (87 Ill. 2d R. 23), based upon its decision in Bastían, reversed the portion of the judgment sustaining the police board’s findings. (108 Ill. App. 3d 1205.) We granted petitions for leave to appeal the Bastían and Fagiano judgments under Rule 315 (87 Ill. 2d R. 315) filed by the defendants, who are the boards and various city departments and officers, and allowed the defendants’ motion to consolidate those decisions for this appeal.

The ordinance that the appellate court held unconstitutionally vague provides:

“All officers and employees in the classified civil service of the City shall be actual residents of the City. Any officer or employee in the classified civil service of the City who shall fail to comply with the provisions of this section shall be discharged from the service of the City in the manner provided by law.”

Rule 25 of the Chicago police department, which the appellate court also held to be invalid, similarly requires officers “to actually reside within the corporate boundaries of the City of Chicago.”

The appellate court, in its opinion in Bastian, stated that the word “residence,” which may have more than one meaning in the law depending upon the context of its use, was too vague to guide administrative agencies in applying the ordinance. The court specifically pointed to the difficulty in applying the ordinance where the employee has two dwellings, one in the city and one elsewhere. To illustrate the need for greater clarity or specificity, the court pointed to eight other decisions of the personnel board involving firemen charged with violating the ordinance. The appellate court said that the actions of the board were not consistent in those cases, and on this basis the court held that the ordinance was not only unconstitutionally vague, but also had been applied in such a manner as to violate the plaintiffs’ due process rights.

We judge that the appellate court erred.

A legislative enactment is unconstitutionally vague if its terms are so indefinite that “persons of common intelligence must necessarily guess at its meaning and differ as to its application.” (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 299-300, appeal dismissed (1980), 444 U.S. 1062, 62 L. Ed. 2d 744, 100 S. Ct. 1001.) We have recently observed: “Statutes enjoy a strong presumption of constitutionality. To hold a statute unconstitutionally vague, its terms must be so ill defined that their meaning will be determined ‘by the opinions and whims of the trier of fact rather than any objective criteria.’ (People v. La Pointe (1982), 88 Ill. 2d 482, 499.)” (People v. Greene (1983), 96 Ill. 2d 334, 338-39.) And we have said: “This court has held that a statute does not violate the due process clauses of the United States or Blinois constitutions, on grounds of vagueness, if the duty imposed by the statute is prescribed in terms definite enough to serve as a guide to those who must comply with it.” Chastek v. Anderson (1981), 83 Ill. 2d 502, 507.

It is true, as was pointed out in Reese & Green; That Elusive Word, “Residence,” 6 Vand. L. Rev. 561 (1953), which the plaintiffs have cited, that “residence” as a legal term, while commonly used in statutes, does not, unlike “domicile,” have a fixed and constant meaning. The authors show that it is a variable term, the meaning of which courts must ascertain from the purposes of the statute or ordinance, although in most cases it has been construed to be synonymous with domicile (6 Vand. L. Rev. 561, 561-62.) The authors provide examples of the term’s being interpreted differently in various contexts, such as in statutes concerning divorce jurisdiction and income taxation.

This, of course, does not require a conclusion that the use of the word here is unconstitutionally vague. Words may differ in meaning according to the context of their use. This does not mean that in every context the meaning of the word is unclear; the meaning may be clear in the particular context. We consider that in the context here “residence” was intended to be synonymous with domicile, which has been defined as “the place where a person lives and has his true, permanent' home, to which, whenever he is absent, he has an intention of returning.” Peirce v. Peirce (1942), 379 Ill. 185, 192.

The plaintiffs’ briefs refer to decisions in various areas where courts stated that “residence” and its variations were without a fixed meaning. (Lister v. Hoover (7th Cir. 1981), 655 F.2d 123, 128 (statute concerning State university tuition); Myers v. Commissioner (4th Cir. 1950), 180 F.2d 969, 971 (tax statute); United States v. Stabler (3d Cir. 1948), 169 F.2d 995, 998 (statute governing venue for denaturalization proceedings); Hughes v. Illinois Public Aid Com. (1954), 2 Ill. 2d 374, 380 (public aid statute); Rosenshine v. Rosenshine (1978), 60 Ill. App. 3d 514, 517 (domestic relations statute); Stein v. County Board of School Trustees (1967), 85 Ill. App. 2d 251, 255, affd (1968), 40 Ill. 2d 477 (statutes governing the right to vote).) In none of those decisions, however, was the statute containing the terms held to be unconstitutionally vague. The plaintiffs do not cite any decision holding a statute unconstitutionally vague through use of the word “residence.”

Reese and Green themselves note that residence in a State or a subdivision of a State is a common statutory requirement for eligibility to hold office, and in that context, the term is generally regarded as synonymous with domicile. 6 Vand. L. Rev. 561, 571-72.

Courts considering laws requiring police officers or firemen to reside near or within a governmental unit have found them adequately clear and defined to be understood and interpreted. (See Annot., Validity, Construction, and Application of Enactments Relating to Requirement of Residency Within or Near Specified Governmental Unit as Condition of Continued Employment for Policemen or Firemen, 4 A.L.R.4th 380, 405-07 .(1981).) Those courts have judged the enactments to require the police officers and firemen to establish their permanent homes within the prescribed area. See Miller v. Police Board (1976), 38 Ill. App. 3d 894 (police department rule that officers reside in the city meant that officers must have their permanent abode or home there, and that requires their physical presence and intent to make that location their permanent home); Mercadante v. City of Paterson (1970), 111 N.J. Super. 35, 40, 266 A.2d 611, 614, affd (1971), 58 N.J. 112, 275 A.2d 440 (statutes requiring municipal officers to reside in the municipality, and permitting policemen and firemen to hold their offices during their residence in the municipality, required them to have their “real and principal residence, in short, domicile,” in the municipality, so as to foster the identity with the community which may well have been the legislature’s goal); Contento v. Kohinke (1973), 42 A.D.2d 1025, 348 N.Y.S.2d 392 (town resolution that police officers must reside in the town requires the officer to have a continual or extended physical presence at an abode in the town, not simply that he have one of his locations there at which he spends time occasionally, in view of the resolution’s purpose that officers be able to respond quickly for active service); McCarthy v. Philadelphia Civil Service Com. (1975), 19 Pa. Commw. 383, 339 A.2d 634, affd on other grounds (1976), 424 U.S. 645, 47 L. Ed. 2d 366, 96 S. Ct. 1154 (in the ordinance requiring civil service employees to be bona fide residents of the city, “bona fide residence” meant “domicile”).

In one of those decisions, in fact, our appellate court construed the term “reside” in a Chicago police department rule nearly identical to the one here. The only difference between the rule in Miller and the present one (requiring that officers “actually” reside in Chicago), which is based on the ordinance involved here, is the word “actually.” (Miller v. Police Board (1976), 38 Ill. App. 3d 894, 904 (supplemental opinion).) As noted, the court in Miller; while not presented with the constitutional-vagueness question, understood the rule to require the officers to establish a permanent home in Chicago, that they be physically present in the city with the intention to make it their permanent residence. (In a petition for rehearing in Miller it was argued that the ordinance was unconstitutionally vague, but the court, in a supplemental opinion, stated that this issue had been waived.)

It would be unreasonable to assume that in these numerous decisions courts were simply guessing at the meaning of “reside.” Bather, reasonably one must conclude that the courts, looking to the obvious purposes of the laws, perceived that the enactments, by requiring employees to reside within the city, required them to establish their principal residence, their domicile, in the city. We judge that the typical reasonable person considering the ordinance and rule here would arrive at the same conclusion and would have sufficient guidance in order to comply with the ordinance and rule.

In Doris v. Police Commissioner (1978), 374 Mass. 443, 373 N.E.2d 944, the court considered a complaint of vagueness against a statute stating that city police officers could reside outside the city, provided that they reside within the Commonwealth and within 10 miles of the city. It was argued by opponents of the statute that the term “reside” was unclear, in that it could refer to the physical location of the officer’s dwelling, or to the community where the officer lived. The difference was important, because the latter construction would allow an officer to live in a town whose city limits were within 10 miles of the city in which he worked, even if the officer’s house was more than 10 miles from that city.

The court rejected the contention that the word was fatally vague. The court pointed out that the statute was not a criminal statute or one affecting fundamental rights. Too, the court stated that, to the extent any ambiguity did exist, the meaning of “reside” in the statute, as in any enactment to be examined, could be examined in relation to the purpose of the act and in accordance with the other terms in it. The court concluded that in view of the purpose of the act, to ensure that officers could be assembled quickly, the word “reside” meant the location of the dwelling place of the officer.

The court in Marabuto v. Town of Emeryville (1960), 183 Cal. App. 2d 406, 6 Cal. Rptr. 690, too, considered a vagueness complaint against a city council resolution requiring all civil service employees to maintain a residence in the city. The city council had reserved the right, however, to permit an employee to live outside the city, but within three miles of it, in cases of extreme hardship or where the health of the employee or his family was jeopardized. The challenge on the ground of vagueness was based upon the power given the council to make exceptions. It was argued that the standard for exceptions was too indefinite, and therefore gave uncontrolled power to discriminate. The court rejected the contention that the standard was too vague. The court pointed out the need to allow administrative boards to operate without unnecessary, shackling judicial interference.

We cannot adopt the plaintiffs’ suggestion that the ordinance and rule are constitutionally infirm for not setting out strict guidelines for administrative bodies to follow in determining residence, or because the boards themselves have not promulgated such standards for their own use. It is said that such guidelines are necessary to assist in deciding the residence of the employee and to prevent abuses of discretion by the boards.

This argument does not sufficiently appreciate that the issue to be decided by a board is principally of determining the employee’s intent. (Peirce v. Peirce (1942), 379 Ill. 185, 192 (the question of a person’s domicile is largely one of intent).) Because intent may be manifested in ways too numerous to simply be listed, an administrative board must look to all of the factors present. There would be danger, of course, that if such standards were itemized in laundry-list fashion the approach by the administrative board to the question would become a mechanical one, and not an individualized determination.

The decision in Lister v. Hoover (7th Cir. 1981), 655 F.2d 123, reflects this. There, three former law students of the University of Wisconsin brought an action against officials of the university, claiming that the denial of resident status to them, and the benefit of reduced tuition, violated their rights to equal protection and due process. A Wisconsin statute provided for reduced tuition for a “bona fide resident” and stated that a student from another State who is in Wisconsin principally for educational purposes would not be considered a Wisconsin resident simply through attendance at a Wisconsin school. The statute also stated that, in determining bona fide residence, the filing of a State tax return in Wisconsin, acquiring eligibility to vote there, motor vehicle registration there, and employment in the State would be considered, although those factors were neither necessary nor sufficient in themselves to establish bona fide residence.

More than a year after the plaintiffs had been initially denied resident status, they applied for reclassification as residents. At that time each of them possessed some or all of the four indicia listed above and had other connections with the State. Two of the three plaintiffs were reclassified.

The plaintiffs had argued that they had not been afforded sufficient guidance as to the standards to be used in determining residence, and that this had denied them due process. The court rejected this contention, however, saying that the question was principally one of intent, and that the plaintiffs had been given adequate opportunity to present evidence to the officials. The court stated:

“We agree with the district court, however, that no additional guidance was necessary, as a matter of constitutional law. The issue is one of intent and no catalogue of objective criteria could, in most circumstances, be conclusive or determinative. [Hooban v. Boling (6th Cir. 1974), 503 F.2d 648, 652.] Plaintiffs were not hindered in their presentation of relevant evidence. Indeed, the extensive presentation of evidence of community involvement and permanent ties to Wisconsin appears to have been decisive in the two cases where resident status was eventually granted. There is no allegation that improper or incorrect evidence was considered. Compare Gonzales v. United States, 348 U.S. 407, 413, 75 S. Ct. 409, 412, 99 L. Ed. 467 [, 472] (1955). When discussing the Connecticut approach to this question, the Supreme Court quoted approvingly from an unreported opinion of the Connecticut Attorney General:
In reviewing a claim of in-state status, the issue becomes essentially one of domicile. In general, the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning. This general statement, however, is difficult of application. Each individual case must be decided on its own particular facts. In reviewing a claim, relevant criteria include year-round residence, voter registration, place of filing tax returns, property ownership, driver’s license, car registration, marital status, vacation employment, etc.
Vlandis v. Kline, 412 U.S. 441, 454, 93 S. Ct. 2230, 2237, 37 L. Ed. 2d 63 [, 72-73] (1973). As Wisconsin’s approach does not differ materially from that set out above, we feel compelled to find no violation of due process in this regard. There is every indication that plaintiffs were given an adequate opportunity to be heard at a ‘meaningful time and in a meaningful manner.’ Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 [, 32] (1976).” 655 F.2d 123, 126-27.

Too, in this regard, the decision in Chastek v. Anderson (1981), 83 Ill. 2d 502, is helpful. There, the plaintiff, a dentist, sought to restrain the Department of Registration and Education from conducting a disciplinary hearing against him. Pursuant to section 7(11) of “An Act to regulate the practice of dental surgery and dentistry ***” (Ill. Rev. Stat. 1977, ch. Ill, par. 2222(11)), which provided that the Department could suspend or revoke a license for “[improper, unprofessional or dishonorable conduct,” the Department charged the plaintiff in a complaint with “unprofessional conduct” in the treatment of three patients over a period of years. The plaintiff contended that the statutory phrase allowing discipline for improper, unprofessional or dishonorable conduct was unconstitutionally vague, because it failed to give him notice of the type of acts that were unprofessional conduct.

This court rejected the contention, holding that the language was capable of being understood when one looked to the purpose of the act, viz, to promote the public health and safety. The court perceived, too, that the language in the statute, of necessity, had to be broad, as it would be impossible to specifically catalogue every act that would constitute unprofessional or dishonorable conduct and warrant discipline.

In Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 300, appeal dismissed (1980), 444 U.S. 1062, 62 L. Ed. 2d 744, 100 S. Ct. 1001, this court summarized the principle governing the delegation of legislative power to administrative agencies:

“As this court stated in Hill v. Relyea (1966), 34 Ill. 2d 552, 555:
‘Absolute criteria whereby every detail necessary in the enforcement of a law is anticipated need not be established by the General Assembly. The constitution merely requires that intelligible standards be set to guide the agency charged with enforcement ***.’
More specifically, we held in Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372, that, in delegating its authority, the legislature must ‘provide sufficient identification of the following:
(1) The persons and activities potentially subject to regulation;
(2) The harm sought to be prevented; and
(3) The general means intended to be available to the administrator to prevent the identified harm.’ ”

We do not consider that the ordinance and rule violate these criteria and subject the employees to arbitrary action by the boards. To support their contention, the plaintiffs have presented to us eight unpublished opinions of the personnel board involving other 'firemen, and allege that these opinions demonstrate that the ordinance is being arbitrarily enforced.

In two of those decisions, the charges against the firemen were dismissed, and in the others the firemen were suspended for certain periods. The appellate court in Bastían pointed to these decisions, which had not been presented to the trial court, and concluded that the ordinance had been arbitrarily applied to Bastían, Byttow and Green. The court said that it saw no reasonable ground for distinguishing the circumstances in those decisions from the circumstances in the causes before it. The court said that the plain terms of the ordinance require the dismissal of violators, and that some firemen had been only suspended showed the arbitrariness of the board.

The defendants’ response is that it was improper for the appellate court to consider the other decisions because they had not been presented to the trial court and were not in the record. The defendants maintain, too, that the appellate court could not have validly compared the circumstances in the causes before it with those in the other cases, because the appellate court did not have before it the administrative record of those cases. All that has been presented to us and, earlier, to the appellate court are the brief decisions of the personnel board and the brief reports of the hearing officers. We need not decide, however, whether the appellate court erred in considering those decisions, because in any event we judge that, as presented, they do not show an unconstitutional arbitrariness on the part of the board.

It is not shown that in these decisions the personnel board applied a standard of residency different from the one announced by the appellate court in Miller v. Police Board (1976), 38 Ill. App. 3d 894, the closely resembling case that we have discussed earlier in this opinion. It is impossible to compare the circumstances in those matters with those here and attempt to judge the consistency of the personnel board. The facts in the other causes are, of course, not identical; the administrative records in those cases are not in the record here, and, further, there is no way to judge here to what extent the decisions were based upon the credibility or want of it of those testifying.

There is no guarantee, of course, that there was no error in the personnel board’s application of the standard of residency to the facts here or to those in other decisions referred to (we have not been told whether any of them were judicially reviewed and affirmed or reversed); however, no intentional discrimination has been shown. The Supreme Court has stated that “[t]he Due Process Clause *** is not a guarantee against incorrect or ill-advised personnel decisions.” (Bishop v. Wood (1976), 426 U.S. 341, 350, 48 L. Ed. 2d 684, 693, 96 S. Ct. 2074, 2080.) The court has long recognized, too, that “[t]he unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.” (Snowden v. Hughes (1944), 321 U.S. 1, 8, 88 L. Ed. 497, 503, 64 S. Ct. 397, 401.) As Justice Frankfurter put it: “The Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the courts or the executive agencies of a state.” 321 U.S. 1, 15, 88 L. Ed. 497, 506-07, 64 S. Ct. 397, 404 (Frankfurter, J., concurring).

Nor do we perceive a constitutional issue because, in the few other decisions of the personnel board brought to our attention, violators of the ordinance were only suspended. Again, there is no evidence of intentional discrimination, nor is there evidence to support a conclusion that the personnel board has acted arbitrarily. There may have been “merely erroneous action,” but without constitutional deprivation. We note that in those other decisions involving suspensions there was a showing that there were, prior to the decision of the personnel board, belated good-faith efforts by the firemen to comply. This was not so in the cases of Bastían, Byttow, and Green.

The appellate court, in holding the ordinance to be unconstitutional, did not reach the other objections of the plaintiffs to their discharges. Among those was the question of sufficiency of the evidence. We accordingly remand the causes to the appellate court for consideration of these questions.

The appellate court did reach one other issue, however, that of Bastian’s right to attorney fees. Bastían had cross-appealed from the trial court’s judgment denying him attorney fees. His request was for fees under section 1988 of title 42 of the United States Code (42 U.S.C. sec 1988 (1976)), on the ground that he was the prevailing party in a civil rights action brought pursuant to section 1983 of that title (42 U.S.C. sec. 1983 (1976)), which requires a showing that the defendant, acting under the color of State law, deprived him of his Federal constitutional rights. Though the appellate court and circuit court held in Bastian’s favor upon constitutional grounds he raised, the appellate court noted that the decision to award fees under section 1988 rests in the court’s discretion, and it judged that the trial court did not abuse discretion in denying fees.

We need not decide whether the appellate court was correct in holding there had been no abuse of discretion, because we have concluded that the circuit and appellate courts’ constitutional holdings were error. See Harris v. Pirch (8th Cir. 1982), 677 F.2d 681, 689 (reversal of the judgment for the plaintiff in a civil rights action under section 1983 negated the award of attorney, fees under section 1988 to the plaintiff as the prevailing party in the suit); Dike v. School Board (5th Cir. 1981), 650 F.2d 783, 787-88 (reversal of the district court’s dismissal of the plaintiff’s section 1983 suit requires the reversal of the section 1988 award of attorney fees to the defendant as the prevailing party).

For the reasons given, the judgment of the appellate court is vacated and the causes are remanded to the appellate court.

Vacated and remanded.

JUSTICE SIMON,

dissenting:

For the reasons set forth in the appellate court opinion in Bastian v. Personnel Board (1982), 108 Ill. App. 3d 672, I believe that the residency requirement established in chapter 25, section 30, of the Chicago Municipal Code “is unconstitutional because it lacks definite standards for equitable enforcement.” 108 Ill. App. 3d 672, 681.