author: JUSTICE WARD

text:
    (Nos. 55962, 55963 cons.
    ROBERT RICKEY, a Minor, Appellee, v. CHICAGO TRANSIT AUTHORITY et al. Appellants.

      Opinion filed June 17, 1983.

      French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Richard G. French, Dorothy F. French and Charles W. Planek, of counsel), for appellant United States Elevator Company.
    Norman J. Barry and Daniel Cummings, of Chicago (Rothschild, Barry & Myers, of counsel), for appellant Chicago Transit Authority.
    James J. Reidy, Ltd., of Chicago (James J. Reidy, William A. Murphy, Gerald M. Chapman, and Donna A. Reidy, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Robert Rickey, a minor, brought an action by his mother and next friend, Janet Rickey, to recover damages for emotional distress allegedly suffered when he viewed an accidental injury to his brother, Richard, who, with Robert, was standing on a descending escalator. The complaint sought recovery from defendants Chicago Transit Authority (CTA), Midland Elevator Company (Midland Elevator) and United States Elevator Company (United States Elevator) upon the theory of negligence, and from defendant Otis Elevator Company (Otis Elevator) upon the theory of strict product liability. The escalator involved here had been designed, manufactured, and sold to the CTA by Otis Elevator. Midland Elevator had contracted to inspect and repair the CTA’s escalators. Midland Elevator had been merged with United States Elevator in 1971. The circuit court of Cook County held that there is no cause of action for emotional distress caused by the negligence of another, absent a contemporaneous physical impact upon the bystander-plaintiff, or for emotional distress under a strict product liability theory, and granted the defendants’ motion to dismiss the complaint with prejudice. The appellate court affirmed the dismissal of the complaint as to defendant Otis Elevator, but reversed the judgment as to the other defendants and remanded the cause to the circuit court. (101 Ill. App. 3d 439.) The appellate court denied applications by the CTA and United States Elevator for a certificate of importance to this court under our Rule 316 (73 Ill. 2d R. 316). We granted and consolidated the petitions for leave to appeal of the CTA and of United States Elevator (73 Ill. 2d R. 315).

The question presented by the appellate court’s judgment is whether a bystander who did not suffer physical injury or impact at the time of the occurrence may recover damages for emotional distress which resulted from witnessing an injury to his brother caused by the defendants’ negligence.

On February 12, 1972, Robert, who was then eight years old, and Richard, then five years old, were descending on a subway escalator owned and operated by the CTA. Part of Richard’s clothing became entangled in the mechanism at the base of the escalator, and he was choked and could not breathe for a substantial period of time. A comatose condition resulted, and Richard remained in a coma as of February 11, 1980, when the complaint here was filed. The complaint stated that he will be permanently confined to a nursing-care facility. The accident occurred in the presence of and was witnessed by Robert. The complaint did not allege that he suffered any impact or injury at the time and did not allege that he was in danger of harm.

The complaint alleged that, as a result of witnessing the accident and injury to his brother, Robert sustained severe mental and emotional distress and psychiatric trauma. It alleged that the emotional distress became manifest in physical injury, including “definite functional, emotional, psychiatric and behavoriai disorders, extreme depression, prolonged and continuing mental disturbances, inability to attend school and engage in gainful employment and to engage in his usual and customary affairs.”

In this State recovery for negligently caused emotional distress suffered by the direct victim or by a bystander who witnesses the injury of another has been consistently denied unless it was accompanied by a contemporaneous physical injury to or impact on the plaintiff. Braun v. Craven (1898), 175 Ill. 401; Carlinville National Bank v. Rhoads (1978), 63 Ill. App. 3d 502; Kaiserman v. Bright (1978), 61 Ill. App. 3d 67; Neuberg v. Michael Reese Hospital & Medical Center (1978), 60 Ill. App. 3d 679.

The appellate court panel here noted that this court in Knierim v. Izzo (1961), 22 Ill. 2d 73, recognized that even without contemporaneous physical impact or injury there may be a recovery for intentionally inflicted emotional distress. It is obvious that in Knierim v. Izzo, however, the circumstances were sharply dissimilar from those here. In that case there was an intentional infliction of emotional distress, not simply mental distress caused by another’s negligence. Too, the intentional conduct of the defendant was extreme and outrageous. This court said that “it is the outrageous nature of [the defendant’s] conduct that forms the basis for the action.” (22 Ill. 2d 73, 88; see also Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85 (another “outrageous” tort decision) and Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874 (1939).) It is clear that Izzo cannot be applied to the circumstances here. (See Restatement (Second) of Torts sec. 46, comment d (1965).) The appellate court itself noted that “[t]he plaintiff does not claim that the injuries of which he complains were caused by an intentional act on the part of the defendants.” 101 Ill. App. 3d 439, 440.

The defendants contend that the appellate court panel attempted to overrule this court’s long-standing holding in Braun v. Craven (1898), 175 Ill. 401, where it was decided that a plaintiff complaining of emotional distress cannot recover unless he suffered a physical injury or impact. They say that the nature of our court system requires that law established by this court’s decision be followed when the question decided arises again before a court. If precedent is not judicially respected, the uniformity and stability of decision, which is essential to the proper administration of justice, will be destroyed. The appellate court panel usurped the function of this court, it is said, and created a conflict in appellate court decisions. Beagley v. Andel (1978), 58 Ill. App. 3d 588, is cited. There the appellate court properly observed: “It is fundamental that appellate courts are without authority to overrule the supreme court or to modify its decisions.” 58 Ill. App. 3d 588, 591.

The appellate court panel here acknowledged that in this State recovery has been consistently barred unless there was a contemporaneous physical injury or impact suffered by the plaintiff. It noted too: “The appellate court has repeatedly followed the Braun decision. [Citations.]” (101 Ill. App. 3d 439, 440.) The panel observed that the defendants asserted that it “lack[ed] authority to award relief *** [and was] duty bound” to follow the decision of this court in Braun v. Craven. (101 Ill. App. 3d 439, 441.) The panel responded that ordinarily it would be improper for the appellate court to deviate from the decisions of this court, but the panel said: “However, the subsequent history of the impact rule and the development of the law in areas dealing with mental distress convince us that a reevaluation of the rule is proper.” (101 Ill. App. 3d 439, 441.) It appears to be accepted that there was a drafting by the panel of a new standard for cases of this character. See 1 J. Dooley, Torts sec. 15.10, at 44 (1982 Supp.), where the interpretation of the panel’s holding is: “The Illinois appellate court has abandoned the impact rule in favor of a Dillon-like rule for negligent infliction of emotional injury.”

Gilliam v. Stewart (Fla. 1974), 291 So. 2d 593, is a case with remarkable resemblance to what we are considering here. There the District Court of Appeal of Florida appeared openly to overrule or attempt to overrule the holding of the Supreme Court of Florida that in the absence of impact no recovery could be had by one suffering physical injury resulting from emotional distress induced by another’s negligent conduct. The supreme court, in affirming its adherence to the requirement of injury or impact, said that only it could overrule its own decisions. It observed that while one should not necessarily infer that its decisions were always correct, the system did provide for the uniform operation of law throughout Florida. The court noted that if the parties had not elected to take certiorari, the decision of the District Court of Appeal would have become final and would have created a decision contrary to others within the State’s body of law on the question. The court approved the observation of a dissenting judge that if the impact doctrine was to be abandoned the change should be made by the Supreme Court of Florida.

Here the appellate court panel denied motions by the CTA. and by United States Elevator for the issuance of a certificate of importance. Had petitions for leave to appeal not been filed, the opinion of the panel would have stood without challenge and in contradiction to what the panel itself noted, namely, the consistent following of the Braun decision by the appellate court.

The significance of stare decisis et non quieta movere does not require extended discussion here.

There is a broad range of opinion as to whether recovery should be permitted in the case of negligent infliction of emotional distress. In Annot., 64 A.L.R.2d 100, 103 (1959), the observation appears: “The case law in the field here treated is in an almost unparalleled state of confusion

* * * >>

The underlying question is, of course, whether any person who suffers emotional distress can recover, but the question here specifically is whether a bystander at the injury of another who, generally under the decisions, is a close relative of the bystander can recover.

In a number of jurisdictions the so-called “impact rule” still governs the question of recovery for emotional distress. In those jurisdictions, which, as stated, has included Illinois, there must have been a contemporaneous physical injury or impact tó permit recovery by a bystander. See, e.g., Hartford v. Max Rouse & Sons Northwest (1980), 100 Idaho 840, 606 P.2d 944; Claycomb v. Eichles (Fla. App. 1981), 399 So. 2d 1050; Howard v. Bloodworth (1976), 137 Ga. App. 478, 224 S.E.2d 122.

The impact rule was at one time followed in the majority of jurisdictions. Today it is clear that most jurisdictions no longer require contemporaneous physical impact or injury for a cause of action for emotional distress. A significant reason for its loss of adherents was that courts quickly began to find that the impact requirement had been met through minor physical contacts which in reality were insignificant and played trivial or no part in causing harm to the plaintiff. The requirement of “impact” often became purely formal, and it was satisfied by a slight jolt or jar (Louisville & Nashville R.R. Co. v. Roberts (1925), 207 Ky. 310, 269 S.W. 333); or “any degree of physical impact, however slight” (Zelinsky v. Chimies (1961), 196 Pa. Super. 312, 318, 175 A.2d 351, 354); or even dust in the eye (Porter v. Delaware, L. & W.R. Co. (1906), 73 N.J.L. 405, 63 A. 860). Illustrating that the impact rule suffers continuing losses in its following, the Supreme Court of Missouri this year in Bass v. Nooney Co. (Mo. 1983), 646 SW.2d 765, abandoned the impact requirement. Also, the Supreme Court of Ohio in 1983, through its opinion in Schultz v. Barberton Glass Co. (1983), 4 Ohio St. 3d 131, 447 N.E.2d 109, announced its departure from the rule. We, too, consider that the question of recovery for emotional distress caused by another’s negligence should not be determined solely on whether there was a contemporaneous physical impact upon the plaintiff.

The conclusion of the appellate court panel that the complaint here stated a cause of action was grounded on these factors: (1) the minor plaintiff was near the scene at the time of the accident; (2) there was a direct emotional impact when he witnessed the accident; and (3) the plaintiff and the victim were close relatives. The standard suggested by the court contains factors similar to those set out in Dillon v. Legg (1968), 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72. In that case, however, which the appellate panel, inter alia, refers to, the court stated: “[W]e deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case.” (68 Cal. 2d 728, 740, 441 P.2d 912, 920, 69 Cal. Rptr. 72, 80.) It appears from the opinion of the appellate court that the panel treated the complaint as one in which damages were sought solely for “emotional distress,” and that it would allow recovery for emotional disturbance or distress alone.

Were the view of the appellate court here to be accepted we consider that we would be adopting a standard that is too vaguely defined to serve as a yardstick for courts to apply, and one that is excessively broad in that it would permit recovery for emotional disturbance alone. Illustrative of apprehensions felt at following so broad a rule . of recovery, the Restatement (Second) of Torts states:

“If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.” Restatement (Second) of Torts sec. 436A, at 461 (1965).

Courts generally have been reluctant to allow recovery for purely mental or emotional distress. Although other courts have challenged these fears, courts have given as reasons for this reluctance apprehensions that the door would be opened for fraudulent claims, that damages would be difficult to ascertain and measure, that emotional injuries are hardly foreseeable and that frivolous litigation would be encouraged.

The standard that we substitute for the one requiring contemporaneous injury or impact is the standard which has been adopted in the majority of jurisdictions where this question of recovery by a bystander for emotional distress has been examined. (See, e.g., Niederman v. Brodsky (1970), 436 Pa. Super. 401, 261 A.2d 84; Owens v. Childrens Memorial Hospital (8th Cir. 1973), 480 F.2d 465 (applying Nebraska law); Robb v. Pennsylvania R.R. Co. (Del. 1965), 210 A.2d 709; Stadler v. Cross (Minn. 1980), 295 N.W.2d 552; Tobin v. Grossman (1969), 24 N.Y.2d 609, 249 N.E.2d 419; Whetham v. Bismarck Hospital (N.D. 1972), 197 N.W.2d 678; Shelton v. Russell Pipe & Boundary Co. (Tenn. 1978), 570 S.W.2d 861; Guilmette v. Alexander (1969), 128 Vt. 116, 259 A.2d 21.) That standard has been described as the zone-of-physical-danger rule. Basically, under it a bystander who is in a zone of physical danger and who, because of the defendant’s negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress. This rule does not require that the bystander suffer a physical impact or injury at the time of the negligent act, but it does require that he must have been in such proximity to the accident in which the direct victim was physically injured that there was a high risk to him of physical impact. The bystander, as stated, must show physical injury or illness as a result of the emotional distress caused by the defendant’s negligence. Dailey v. LaCroix (1970), 384 Mich. 4, 179 N.W.2d 390; Stadler v. Cross (Minn. 1980), 295 N.W.2d 552; Fournell v. Usher Pest Control Co. (1981), 208 Neb. 684, 385 N.W.2d 605; Restatement (Second) of Torts sec. 436A, comment c (1965).

The standard we adopt here shall be applied to this case and to all cases not finally adjudicated. (See Elliott v. Willis (1982), 92 Ill. 2d 530, 545.) We judge that under the circumstances the plaintiff here should be permitted to plead again. What the facts of the occurrence here were cannot be precisely determined from the complaint, which of course was not drawn with the standard in mind that we announce today.

Though the appellate court appeared to regard the case as one involving solely emotional distress, the complaint here did allege resultant physical manifestations. Also, the complaint states simply that the plaintiff and his brother were descending on the escalator and that the brother’s clothing became entangled in the mechanism of the escalator. We do not know the plaintiff’s position or location on the escalator at the time and whether he was endangered by the claimed negligence; we do not know whether he had reasonable fear for his own safety, causing emotional distress.

For the reasons given here, the judgment of the appellate court is affirmed and the cause is remanded to the circuit court of Cook County for proceedings not inconsistent with this opinion.

Affirmed and remanded.


source: Caselaw Access Project

author: JUSTICE WARD JUSTICE SIMON,

license: Public Domain

text:
    (No. 56970.
    RAVON DAUGHERTY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (National Union Electric Corporation et al., Appellees).

      Opinion filed October 21, 1983.

      SIMON, J., dissenting.
    James Walker, Ltd., of Bloomington, for appellant.
    Ralph Schroeder, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellee National Union Electric Corporation.
    Roger D. Lapan, Special Assistant Attorney General, of Bloomington, for appellee Treasurer of the State of Illinois.
   JUSTICE WARD

delivered the opinion of the court:

Ravon Daugherty, the claimant, was awarded compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) (the Act) by an arbitrator for injuries sustained in a fall on February 21, 1979, while employed by the National Union Electric Corporation (National Electric). The Industrial Commission reduced the amount of the award, and the Commission’s decision was confirmed by the circuit court of McLean County. The claimant directly appealed to this court from the circuit court’s judgment under Rule 302(a) (87 Ill. 2d R. 302(a)).

The claimant’s application for adjustment of claim named his employer, National Electric, as the respondent. National Electric subsequently filed its own application, naming as the respondent the Treasurer of the State of Illinois as the ex officio custodian of special funds, and moved to have the Treasurer added as an additional party respondent. National Electric did so for purposes of contribution. Prior to the accident here the claimant had suffered the total and permanent loss of use of his left arm due to poliomyelitis. Under subparagraphs (e)18 and (f) of section 8 of the Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.8(e)18, (f)), if an employee who has already lost the use of a member specified in the statute suffers the permanent and total loss of use of another member through an employment accident, which renders him totally and permanently disabled, the current employer must pay compensation only for the loss of use of the member injured in the accident. The balance of the compensation owed the claimant because of the condition of total and permanent disability is paid from the Second Injury Fund, which is provided for in section 7(f) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(f)). The State Treasurer is ex officio the custodian of the Second Injury Fund.

The arbitrator found that as a result of the accident the claimant suffered the permanent and complete loss of use of his right arm. Considering the previous loss of use of the left arm, the arbitrator found the claimant was totally and permanently disabled and entitled to compensation for life. National Electric was ordered to pay weekly compensation for a specified number of weeks for the loss of the right arm, and the order stated that the claimant was entitled to compensation for life from the Second Injury Fund.

The Commission, on review of the arbitrator’s decision, found that the claimant had not lost the use of his right arm, but had lost 100% of the use of his right hand, and adjusted the compensation awarded accordingly. Too, the Commission decided the arbitrator had erroneously calculated the weekly compensation due and corrected the calculation. The Commission affirmed the other findings of the arbitrator. National Electric was ordered to pay weekly compensation for the period called for by the statute, and the Commission ordered payments to be made to the claimant from the Second Injury Fund upon National Electric’s completion of its payments.

On the 20th day after receiving a notice of the Commission’s decision, the claimant filed with the clerk of the circuit court a praecipe for a writ of certiorari and scire facias. The praecipe named the Industrial Commission and National Electric as respondents, and was filed to obtain review of the Commission’s decision pursuant to section 19(f)(1) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(f)(1)). That section provides in relevant part:

“(1) Except in cases of claims against the State of Illinois, in which case the decision of the Commission shall not be subject to judicial review, the Circuit Court of the county where any of the parties defendant may be found, or if none of the parties defendant can be found in this State then the Circuit Court of the county where the accident occurred, shall by writ of certiorari to the Commission have power to review all questions of law and fact presented by such record.
Such suit by writ of certiorari shall be commenced within 20 days of the receipt of notice of the decision of the Commission. Such writ of certiorari and the writ of scire facias shall be issued by the clerk of such court upon praecipe returnable on the designated return day, not less than 10 or more than 60 days from the date of issuance thereof, and the praecipe shall contain the last known address of other parties in interest and their attorneys of record who are to be served by scire facias. Service upon any member of the Commission or the Secretary or the Assistant Secretary thereof shall be service upon the Commission, and service upon other parties in interest and their attorneys of record shall be by scire facias, and such service shall be made upon the Commission and other parties in interest by mailing notices of the commencement of the proceedings and the return day of the writ to the office of the Commission and to the last known place of residence of other parties in interest or their attorney or attorneys of record.” (Emphasis added.)

The circuit court clerk issued the writs on the day after the praecipe was filed.

National Electric moved to quash the writ of certiorari on the ground that the praecipe and the writs named only the Commission and National Electric as respondents. The Treasurer and his counsel, a special assistant Attorney General, were not named in the praecipe and served with a writ of scire facias. National Electric contended that the failure to name the Treasurer and his counsel did not satisfy the statutory requirement that the names and addresses of all parties in interest must be included in the praecipe and that such parties must be served by writ of scire facias, and that because of this failure the court never acquired jurisdiction.

After the motion to quash had been filed, the claimant filed another praecipe, which requested issuance of a writ of scire facias directed to the Treasurer through his counsel. That writ was served, and the special assistant Attorney General entered an appearance in behalf of the Treasurer. The circuit court, relying on the fact that the Treasurer had been eventually served and had entered his appearance without objection, denied the motion to quash and confirmed the decision of the Commission.

We judge that the circuit court erred in not quashing the writ because the court lacked jurisdiction. Because of the disposition we make we do not reach any of the other issues presented.

The circuit court’s jurisdiction to review a decision of the Industrial Commission on a writ of certiorari is a special statutory power, the extent of which is limited by the statute’s provisions. (Boalbey v. Industrial Com. (1977), 66 Ill. 2d 217, 218; Thompson v. Industrial Com. (1941), 377 Ill. 587, 589.) Strict compliance with the statutory requirements for the issuance of the writ is necessary to enable a court to acquire subject matter jurisdiction. Arrington v. Industrial Com. (1983), 96 Ill. 2d 505, 508; Boalbey v. In dustrial Com. (1977), 66 Ill. 2d 217, 218.

Here the statutory requirements were not satisfied. The claimant does not question that the Treasurer was a party in interest. The Treasurer, through his counsel, participated in the hearing before the arbitrator and, in fact, petitioned the Commission for review of the arbitrator’s decision. The Treasurer and his counsel were not included in the praecipe as section 19(f)(1) requires.

Matthiessen & Hegeler Zinc Co. v. Industrial Com. (1940), 373 Ill. 293, involved similar circumstances. There, the circuit court quashed a writ of certiorari upon the motion of the widow of a deceased employee. The widow had filed an application for adjustment of claim in her own name against her husband’s employer, stating that the deceased left surviving him three children under 16 years. An arbitrator made an award to the widow for the support of herself and the minor children. Upon review by the Commission, the children were added as additional claimants on the motion of the employer. The employer later sought to have the Commission’s decision on the claim reviewed, but the praecipe for a writ of certiorari did not name or make parties the children or their next friend, nor did it contain their last known address. The circuit court quashed the writ without giving the employer an opportunity to correct the error.

This court held that the circuit court had properly quashed the writ, because the court had not acquired jurisdiction due to the failure to file a praecipe conforming to the statute’s requirements. The employer had argued that the minors were not necessary parties, but the court accepted the widow’s argument that whether the minors were necessary parties or not was irrelevant, because they certainly were parties in interest.

We must reject the argument of the claimant that because an “amended praecipe” was eventually filed, and because the Treasurer by his counsel then appeared without objection, jurisdiction was acquired. Those factors are not relevant. The issue here is not jurisdiction over the person of the Treasurer, but subject matter jurisdiction of the court, which could have been acquired only by a timely filing of a praecipe meeting the statutory prescription.

The claimant’s citation of Bethlehem Steel Corp. v. Industrial Com. (1968), 41 Ill. 2d 40, misses the mark. There this court held that the circuit court was correct in not quashing a writ of certiorari where the praecipe for the writ did not name the law firm who were attorneys of record. There was no error, this court held, because although the firm was not mentioned as attorneys of record for the claimant, the individual attorney who had appeared on behalf of the firm and of the claimant in oral argument before the Commission and in the circuit court had been named in the praecipe and was properly served.

For the reasons given, the judgment of the circuit court is vacated and the appeal is dismissed.

Judgment vacated; appeal dismissed.

JUSTICE SIMON,

dissenting:

The majority places undue emphasis on a general rule that, because the jurisdiction exercised by the circuit court under the Workers’ Compensation Act is a special statutory one, a praecipe in a fully completed form is necessary in order to create jurisdiction. (Matthiessen & Hegeler Zinc Co. v. Industrial Com. (1940), 373 Ill. 293, 296.) I do not agree that a failure to name or give addresses of parties in interest in the praecipe, as required by the Act, defeats the subject matter jurisdiction of the court. The omission that occurred here went at most to the court’s personal jurisdiction over a necessary party, and as such it was cured by the amendment of the praecipe and the subsequent appearance of that party without objection. Compare Nupnau v. Hink (1965), 33 Ill. 2d 285, 287, interpreting the jurisdictional provisions of the will contest statute (now section 8 — 1(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 8 — 1(a))).

The praecipe is the circuit court’s first view of a workers’ compensation case and should therefore give notice of the level of complexity of the case and who is involved in it. The requirement that the praecipe contain the names and last known addresses of other parties in interest and their attorneys of record serves to identify the parties in interest to the circuit court; it also provides the court with an address to which it can direct any inquiries it may have during the pendency of the proceedings in that court or any orders which must be complied with after those proceedings are over. Failure to provide this information leaves the court without assurance that all parties in interest know that review of the Industrial Commission’s decision is being sought, and it may hinder the court in its efforts to get in touch with the parties or to understand initially who is being charged with responsibility and for what. However, it does no more than this. Inclusion of the missing information in an amended praecipe filed in timely fashion and before proceedings pursuant to the writ of certiorari begin tells the circuit court everything it needs to know about the case. The subsequent appearance of the unnamed parties, such as occurred here without any objection on their part, gives the needed assurance that everyone with an interest potentially adverse to that of the petitioner is aware of the petition for certiorari as the law with respect to personal jurisdiction requires.

The rule that strict compliance with the terms of a special remedial statute is necessary to create jurisdiction of its subject matter is useful only to the extent that the terms which are to be complied with go to the substance of the remedy afforded, so that it can be said that the legislature might have been unwilling to permit courts to hear cases in which those terms were not met. It should not be assumed that “the General Assembly intended that the path from the Industrial Commission to the circuit court [be] an obstacle course” (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 194 (Dooley, J., dissenting)), or that it intended to make a minor omission with no substantial bearing on the remedy afforded by the Workers’ Compensation Act fatal beyond salvage. The interests safeguarded by the provision at issue here were purely procedural and were adequately protected by timely amendment and the voluntary appearance of the interested party. I see no good reason for depriving the claimant of his day in court.


text:
    (No. 56776.
    ILLINOIS CEREAL MILLS, INC., Appellant, v. THE DEPARTMENT OF REVENUE, Appellee.

      Opinion filed December 1, 1983.

      McDermott, Will & Emery, of Chicago (Hamilton Smith and John J. Jawor, of counsel), for appellant.
    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield (Paul J. Bargiel and Patricia Rosen, Special Assistant Attorneys General, of counsel), for appellee.
    James F. Flanagan, George W. Keeley, Louis R. Marchese, and Michael T. Reid, of Halfpenny, Hahn & Roche, of Chicago, for amicus curiae Illinois Wholesaler-Distributors Association.
    Charles G. Chester and Nicholas J. Nedeau, of Martin, Craig, Chester & Sonnenschein, of Chicago, for amicus curiae Illinois Soft Drink Association, Inc.
   JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Illinois Cereal Mills, filed a complaint against the defendant, the Department of Revenue (Department), for administrative review in the circuit court of Edgar County, to set aside an assessment of taxes, penalties and interest of $67,135.05 under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.), the Municipal Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 24, par. 8 — 11—1), and the Use Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.1 et seq.). Holding for the plaintiff, the circuit court modified the assessment. The appellate court reversed (106 Ill. App. 3d 53), and we granted the plaintiff’s petition for leave to appeal under Rule 315 (87 Ill. 2d R. 315). We granted leave to the Illinois Wholesaler-Distributors Association and the Illinois Soft Drink Association to file briefs amici curiae. Their briefs support the plaintiff.

The plaintiff is engaged principally in manufacturing corn products. The plaintiff sells to other manufacturers who process the product and resell it primarily as livestock feed. The Department conducted a field audit of the plaintiff’s sales revenues for the period from January 1, 1974, through February 28, 1977. The Department’s auditor disallowed $710,830 in sales, the greater portion of which the plaintiff asserted to be nontaxable as sales for resale. The Department issued a notice of tax liability, to which the plaintiff filed a protest and requested an administrative hearing. Following a hearing, the hearing officer recommended a final assessment of approximately $67,000, and the Department issued a final assessment for that amount. The assessment included a claimed indebtedness under the Use Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.1 et seq.). The use tax assessment has not been challenged on this appeal. The Municipal Retailers’ Occupation Tax Act incorporates by reference all the provisions of the Retailers’ Occupation Tax Act which are pertinent to this case, and therefore only the latter, referred to hereafter as “the Act,” need be cited and considered.

At the hearing, the Department asserted that approximately $710,000 in sales, most of which were claimed by the taxpayer to be nontaxable as sales for resale, were taxable. The Department’s evidence consisted mainly of testimony of its auditor, Burl Good, his audit, and corrected returns. The auditor found that, considering the nature of the products sold and the large amounts purchased, the sales in question appeared to be sales for resale. However, he concluded that the plaintiff was liable for the retailers’ occupation tax because the resale certificates (which we will later refer to) did not comply with the documentation and verification requirements of section 2c of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 441c). In some instances the auditor found the resale certificates were improper because they were not signed by the purchasers from the taxpayer but by those to whom the purchasers had resold the products. In other cases the certificates lacked registration or resale numbers or were not dated.

The plaintiff presented testimony from certain of its officers, employees and purchasers that the sales in question had been almost entirely sales for resale. The plaintiff acknowledged liability for taxes on approximately $113,000 in sales revenue from retail sales which were, the plaintiff stated in oral argument, principally accommodation sales made for good-will purposes. Some of that testimony was to the effect that registration numbers could not be obtained for some of the questioned sales because the purchasers had later gone out of business. The plaintiff also introduced invoices for sales in the questioned audit period, as well as affidavits and testimony from purchasers, to show that these sales were, in fact, for resale. The taxpayer’s December 1975 tax return was also admitted into evidence. As we noted, the plaintiff admitted that it had made some retail sales, but in December 1975, as an example, taxable retail sales amounted to only .66% of receipts from the taxpayer’s total sales for the month of over $4 million. The plaintiff argues that this is not only representative of its own yearly retail sales percentage, but it also states that the practice of other Illinois wholesalers is likewise to make minimal amounts of retail sales and that such sales constitute about the same percentage of their total sales.

The hearing officer adopted the auditor’s recommendation that the certificates of resale not be accepted, and found that the taxpayer had not satisfactorily documented the resale character of its sales under section 2c of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 441c). The Department accepted the hearing officer’s recommended assessment of $67,000 based on sales of $710,830.

Before the circuit court the plaintiff acknowledged its retailers’ occupation tax liability for $26,000, representing admitted retail sales of approximately $113,000. The plaintiff challenged, however, the balance of the assessment, i.e., $41,000, saying that the balance represented not retail sales, but sales for resale. The circuit court agreed with the plaintiff, but the appellate court reversed as to the claimed sales for resale and reinstated the challenged assessment balance of $41,000 (106 111. App. 3d 53, 57-58).

The taxpayer contends (1) that sections 1 and 2c of the Act do not apply to it, as it is a wholesaler making tax-exempt sales for resale, with only an insignificant percentage of its sales being sales for retail; (2) if section 2c does apply to it, the section’s requirements are not mandatory and noncompliance with its provisions simply creates a presumption of tax liability that may be rebutted, which the plaintiff’s evidence in fact accomplished; (3) if noncompliance with requirements of section 2c renders sales for resale per se taxable, then section 2c violates section 13 of article IV of the Constitution of Illinois, or (4) section 2c violates the uniformity clause of the Constitution of Illinois and the equal protection clause of the United States Constitution, or (5) it violates the export clause of the United States Constitution, and (6) the Department should be collaterally estopped from raising certain issues on appeal.

The interpretation and applicability of section 2c are central to the questions on this appeal. The section was added to the Act in 1965 (1965 Ill. Laws 116), and as amended in 1967 (1967 Ill. Laws 257) it reads:

“If the purchaser is not registered with the Department as a taxpayer, but claims to be a reseller of the tangible personal property in such a way that such resales are not taxable under this Act or under some other tax law which the Department may administer, such purchaser (except in the case of an out-of-State purchaser who will always resell and deliver the property to his customers outside Illinois) shall apply to the Department for a resale number. ***
Upon approval of the application, the Department shall assign a resale number to the applicant and shall certify such number to him. ***
* * *
Except as provided hereinabove in this Section, no sale shall be made tax-free on the ground of being a sale for resale unless the purchaser has an active registration number or resale number from the Department and furnishes that number to the seller in connection with certifying to the seller that any sale to such purchaser is nontaxable because of being a sale for resale.”

Section 2 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 441) states the persons liable for the tax. The opening sentence of section 2 reads:

“A tax is imposed upon persons engaged in the business of selling tangible personal property at retail at the rate of [a given percentage] of the gross receipts from such sales of tangible personal property ***.”

Section 1 of the Act defines terms relevant here:

“ ‘Sale at retail’ means any transfer of the ownership of or title to tangible personal property to a purchaser, for the purpose of use or consumption, and not for the purpose of resale in any form as tangible personal property to the extent not first subjected to a use for which it was purchased, for a valuable consideration: ***.
‘Sale at retail’ shall be construed to include any transfer of the ownership of or title to tangible personal property to a purchaser, for use or consumption by any other person to whom such purchaser may transfer the tangible personal property without a valuable consideration, and to include any transfer, whether made for or without a valuable consideration, for resale in any form as tangible personal property unless made in compliance with Section 2c of this Act.
* * *
‘Purchaser’ means anyone who, through a sale at retail, acquires the ownership of or title to tangible personal property for a valuable consideration.” Ill. Rev. Stat. 1979, ch. 120, par. 440.

Section 4 of the Act provides that a corrected return prepared by the Department will be deemed prima facie correct and is prima facie evidence of the correctness of the amount of tax due. (Ill. Rev. Stat. 1979, ch. 120, par. 443.) When the Department established its prima facie case here by introducing its corrected returns into evidence, the burden shifted to the plaintiff taxpayer to overcome the prima facie evidence by showing the transaction to be nontaxable. (See United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 455; Howard Worthington, Inc. v. Department of Revenue (1981), 96 Ill. App. 3d 1132, 1134.) The plaintiff contends that its evidence was sufficient to prove the tax-exempt resale character of the sales involved and thus overcome the Department’s prima facie case. Certainly if section 2c, with its documentation requirements, was not applicable, the plaintiff’s evidence was clearly sufficient to rebut the Department’s prima facie case. (See Fashion-Bilt Cloak Manufacturing Co. v. Department of Finance (1943), 383 Ill. 253.) The first question, therefore, is whether section 2c was applicable.

The plaintiff relies on Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, in arguing that section 2c has no application. In Dearborn, the plaintiff, a wholesale grocer, filed a complaint for administrative review of assessments for taxes under the Retailers’ Occupation Tax Act. At the administrative hearing, the evidence was undisputed that all of the plaintiff’s sales were for resale. The evidence consisted of testimony and affidavits from Dear-born’s salesmen and truck drivers that all of the items purchased from the plaintiff were sold for resale. The plaintiff, however, did not produce any resale certificates from its purchasers. On this evidence, the hearing officer made a finding that the plaintiff was a wholesale grocer. Since the plaintiff did not meet the documentation requirements of section 2c, however, the claimed sales for resale were found to be taxable. The circuit court set aside the decision in favor of the Department, but the appellate court reversed. We, in turn, reversed the appellate court, holding that section 2c was inapplicable under the circumstances.

The only factor to distinguish between Dearborn and the case here is that the plaintiff, as it acknowledges, made what appears to be a minute portion of its total sales at retail. In Dearborn it appears that the plaintiff apparently made “no retail sales at all.” (82 Ill. 2d 471, 478.) The Department and the appellate court here grounded their determination of the plaintiff’s liability on this distinction.

This court, in conformity with the plain language of section 2 of the Act, has consistently held that the retailers’ occupation tax is imposed upon persons engaged in the business of selling tangible personal property at retail. (United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 450; Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 477; Hagerty v. General Motors Corp. (1974), 59 Ill. 2d 52, 54-55.) It cannot be realistically said that the plaintiff was engaged in the business of selling at retail when, for example, over 99% of its sales in one of the audit periods were admittedly wholesale sales; clearly the plaintiff is a wholesaler. In Dearborn we declared that section 2c of the Act was not applicable to wholesalers, and that the documentation required under it to exempt a . sale to a purchaser who is not the ultimate consumer is not required of wholesalers. In noting that if section 2c were considered to extend to wholesalers grave constitutional problems, including those of multiple taxation, would be created, we stated:

“If section 2c is construed as applying only to retailers, the problems just discussed are eliminated. Analysis of the section discloses that such a construction is indeed the correct one. The key term in the section is ‘purchaser,’ which is defined in the Act as ‘anyone who, through a sale at retail, acquires the ownership or title to tangible personal property for a valuable consideration.’ (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 120, par. 440.) The plaintiff’s customers are plainly not ‘purchasers’ from it in the sense in which the Act defines that term, and it is not the transactions between the plaintiff and its customers at which the section is directed.
The apparent purpose of section 2c is rather to provide a means of verifying a claim made by a person subject to the Act as a retailer that a particular sale by him is exempt from tax because the purchaser is not himself the ultimate user or consumer of the property.” Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 479.

In this case, too, it is plain that the buyers in the questioned sales from the plaintiff were not purchasers within the meaning of the Act; they were acknowledged by the Department not to be the ultimate users or consumers of the property sold. In Dearborn, we observed that any “attempt by indirection to extend the retailers’ occupation tax to one not engaged in that business [retail sales] would invalidate the amendments [to the Act].” (82 Ill. 2d 471, 478.) The Department’s position here would amount to an attempt by indirection to extend the liability under the Act to the plaintiff, a wholesaler.

The Department nevertheless contends that these sales voluntarily made by the plaintiff caused the plaintiff to be regarded as a retailer and subject to section 2c’s documentation requirements. Therefore, as it is a retailer, argues the Department, sales of the plaintiff not meeting section 2c’s documentation requirements are taxable, despite the plaintiff’s proof that the questioned sales were not retail sales but sales for resale. It would be violative of the Act’s intendment, however, to regard the plaintiff as a retailer on the basis of the small percentage of retail sales which the plaintiff admits it occasionally made, which in the main were made from accommodation and good-will motives.

In Mobil Oil Corp. v. Johnson (1982), 93 Ill. 2d 126, 134, we stated:

“It has long been the rule in this State that one who sells ‘tangible personal property for use or consumption and not for re-sale, and does so not occasionally but as a business or occupation’ is making retail sales subject to the Retailers’ Occupation Tax Act. (Franklin County Coal Co. v. Ames (1934), 359 Ill. 178, 183.)”

Making retail sales was not the business or occupation of the plaintiff. Retail sales were only occasional. The negligible amount of retail sales did not convert the plaintiff into a retailer and did not change sales for resale into sales for use or consumption. In Mobil we observed:

“The application of the Act to the sale depends upon whether the purchased property was used or consumed by the buyer or whether it was resold by the buyer. (See, e.g., American Airlines, Inc. v. Department of Revenue (1974), 58 Ill. 2d 251; Burrows Co. v. Hollingsworth (1953), 415 Ill. 202; Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55.” (93 Ill. 2d 126, 134.)

The plaintiff’s evidence “showed conclusively,” as the appellate court’s opinion put it, that the property sold in the questioned sales was resold by the buyers. The Act, therefore, had no application here. Accordingly, we hold that section 2c of the Act was not applicable to this plaintiff or to the questioned sales. The plaintiff’s evidence sufficiently rebutted the Department’s prima facie case. Under the disposition we make, there is no need to address the other points raised by the plaintiff.

For the reasons given, the judgment of the appellate court is reversed and that of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 57264.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SHIRLEY TANZY, Appellant.

      Opinion filed December 1, 1983.

      Robert Agostinelli, Deputy Defender, and Sue Augustus, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Michael B. Weinstein, Jack Donatelli, and James E. Fitzgerald, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE WARD

delivered the opinion of the court:

The question in this appeal is whether a defendant acquitted by reason of insanity and thereafter committed to the Department of Mental Health and Developmental Disabilities (the Department) under an indeterminate sentence is entitled to deduction of compensatory good-time credits under administrative regulations, in addition to statutory good time, in determining the maximum term for which the defendant may be committed. The circuit court of Kankakee County and the appellate court held that Shirley Tanzy, the defendant here, was not entitled to the additional award of compensatory good-time credit (108 Ill. App. 3d 59). We allowed the defendant’s petition for leave to appeal (87 Ill. 2d R. 315).

On November 15, 1977, the State’s Attorney of Kankakee County filed an information charging Shirley Tanzy with attempted murder (Ill. Rev. Stat. 1977, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)) and cruelty to a child (Ill. Rev. Stat. 1977, ch. 23, par. 2368). Following a bench trial on March 8, 1978, the circuit court found the defendant not guilty by reason of insanity. She was committed to the Department pursuant to statute for an initial period not to exceed 12 months. Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-4.

On September 2, 1981, a hearing was conducted to determine the maximum period for which the defendant could be committed. (See People v. Thiem (1980), 82 Ill. App. 3d 956.) The circuit court determined the maximum term to be commitment for life. (Under section 5 — 2— 4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b)) upon acquittal of a felony by reason of insanity the trial judge must determine the maximum sentence that could have been imposed upon conviction for the most serious crime charged, less credit for good behavior. The maximum period for which the insane person can be committed is determined by reference to the sentencing scheme. The maximum thus determined will represent the outer limit of the defendant’s possible commitment. The defendant cannot be held beyond that maximum. In a real sense, of course, the commitment of such a defendant is, of course, indefinite because the person may be released at any time he or she is determined to be sane.) On appeal, the appellate court held the circuit court had erred in its calculation of the maximum term of commitment and also in not determining whether the defendant was competent to make the election provided by statute as to whether she wished to be sentenced under the provisions of the Criminal Code of 1961 as of the date of the commission of the offenses or as of the date of commitment to the Department. 108 Ill. App. 3d 59; see Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1008 — 2—4(b); People v. Tedford (1982), 109 Ill. App. 3d 195.

The appellate court concluded that the maximum period of commitment could not exceed 15 years under either election. This was determined by calculating the amount of statutory good time to which the defendant was entitled. The appellate court, however, held that compensatory good-time credit under the administrative regulations could not be credited, stating that compensatory good-time credit is to be administered only by the Department of Corrections and is to be based upon an inmate’s conduct while in a prison. The court held that in the case of a commitment for insanity the committed person would not be entitled to compensatory good-time credit.

Too, the appellate court held that the error of the trial court in determining that the defendant’s maximum term of commitment was for life was not prejudicial. When statutory good time is calculated, the court noted, the life term could have been reduced to 15 years also.

The appellate court erred in holding that the defendant could not be eligible for compensatory good-time credits because she was not committed to a prison.

The court stated:

“The fact that a defendant sentenced to prison may be eligible for compensatory good-time credits to further reduce a sentence is a factor which a trial judge cannot take into consideration in this type of insanity commitment. Compensatory good time is administered by the Department of Corrections and is based on the inmate’s conduct while in prison. If a prisoner performs meritorious service while in prison, reduction in prison time can accrue; otherwise, no reduction is possible. Consequently, the proper calculation of such credits, if any, is left to the Department of Corrections. In the case of an insanity commitment, we do not believe the defendant is entitled to such credits. Mrs. Tanzy is not imprisoned.” 108 Ill. App. 3d 59, 62.

The court, however, did not consider Hampton v. Rowe (1980), 88 Ill. App. 3d 352, where it was held that the denial of compensatory good-time credit to one serving time in the county jail prior to his conviction and sentencing denied equal protection. The court in Hampton noted that Department of Corrections Regulation 866, which originally permitted compensatory good-time credit to inmates performing work assignments or participating in educational, vocational or therapeutic programs at correctional institutions, had been revised because there were not enough jobs or programs available to accommodate inmates who sought compensatory good-time credit. The court held that the revised Regulation 866 opened eligibility for compensatory good-time credit to all inmates within the Department of Corrections, as eligibility was no longer dependent upon the performance of work assignments or other meritorious activity by the inmate.

That holding was followed by the court in In re Commitment of Coppersmith (1982), 108 Ill. App. 3d 161, where circumstances similar to those here were involved. The defendant was charged with murder and prior to trial had been confined in the county jail. After having been found not guilty by reason of insanity, he was committed to the Department of Mental Health and Developmental Disabilities. The court, relying principally on the holding in Hampton, held that it could observe no real distinction between the prisoner there and the defendant before it who was in the custody of the Department. There was no reason, the court concluded, why a defendant committed to the Department should be treated differently than the plaintiff in Hampton.

The legislature has provided that, in the case of a defendant acquitted of a felony by reason of insanity, the commitment shall not exceed the maximum length of time the defendant would have been required to serve, less credit for good behavior. To hold that only imprisoned persons would be eligible for compensatory good-time credit would penalize insane persons of this class and unreasonably favor those who had been convicted.

For the reasons given, that portion of the judgment of the appellate court reversing the judgment of the circuit court is affirmed; the portion of the judgment fixing the term of the defendant’s commitment is vacated. The judgment of the circuit court of Kankakee County is reversed, and the cause is remanded to that court for further proceedings consistent with this opinion.

Appellate court affirmed in part and vacated in part; circuit court reversed; cause remanded.


author: JUSTICE MORAN

text:
    (No. 57279.
    BERNARD ALLEN FRIED, Appellant, v. WALTER JACOBSON et al., Appellees.

      Opinion filed December 1, 1983.

      CLARK and SIMON, JJ., took no part.
    Bernard Allen Fried, pro se, and Robert A. Korenkiewicz, both of Chicago, for appellant.
    Reuben & Proctor, of Chicago (Lawrence Gunnels, Samuel Fifer, Charles C. Post, and Barry Ginsberg, of counsel), for appellees.
   JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Bernard Allen Fried, an attorney, filed this libel action in the circuit court of Cook County seeking damages against defendants, Walter Jacobson, Susan Anderson, William Kurtis, Columbia Broadcasting System, Inc., and WBBM-TV CBS television station, a division of Columbia Broadcasting System, Inc. The circuit court granted the defendants’ motion for judgment on the pleadings and the appellate court unanimously affirmed (107 Ill. App. 3d 780). We allowed plaintiff’s petition for leave to appeal.

The series of broadcasts upon which the complaint was based were aired by the defendant, Columbia Broadcasting System, Inc., during February 7, 1977, through December 20, 1977. The broadcasts, in general, focused on tax-delinquent properties owned by churches and other charitable organizations, including plaintiff’s clients. The alleged libelous statements are summarized in the appellate court opinion and, because of our disposition, need not be reiterated here.

Plaintiff contends that the defendants wrongfully, maliciously, and with the intent to defame and injure him personally and professionally, published false and defamatory broadcasts which imputed want of integrity to him as an attorney and which prejudiced him in his profession. Specifically, the plaintiff alleges that the defendants charged him with conduct that amounts to a violation of the Code of Professional Responsibility and the crimes of forgery, embezzlement, fraud, and deceit. Plaintiff does not aver any special damages and, thus, his right to recover rests upon whether the alleged libelous broadcasts are actionable as a matter of law. Strauss v. Meyer (1868), 48 Ill. 385, 388; Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 343.

The trial court concluded that “(a) the broadcasts complained of are capable of an innocent construction and are nonactionable as a matter of law, and (b) the broadcasts do not constitute a libel per se of the plaintiff in his capacity as an attorney” and dismissed the complaint. The appellate court affirmed, holding that the broadcasts were not libelous per se.

An action for defamation based on libel per se requires that the words used are in and of themselves so obviously and naturally harmful that proof of special damages is unnecessary. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 348.) In Illinois, under the common law, four classes of words, if falsely communicated, give rise to a cause of action for defamation without a showing of special damages. They are:

“1. Those imputing the commission of a criminal offense;
2. Those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;
3. Those imputing inability to perform or want of integrity in the discharge of duties of office or employment;
4. Those prejudicing a particular party in his profession or trade.” Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 340, cited with approval in Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 261.

The foregoing is the law of this State except where changed by statute. “An Act to revise the law in relation to libel and slander” (Ill. Rev. Stat. 1977, ch. 126, par. 1 et seq.) enlarged the classifications enumerated above by providing that false accusations of fornication, adultery and false swearing are actionable as a matter of law.

The “rule of innocent construction” has been employed to determine whether the particular language used constitutes libel per se. The rule arose from obiter dictum in John v. Tribune Co. (1962), 24 Ill. 2d 437, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148. In John, the court stated:

“We further believe the language in defendant’s articles is not libelous of plaintiff when the innocent construction rule is consulted. That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.” (Emphasis added.) 24 Ill. 2d 437, 442.

In the instant case, it appears that both the circuit and appellate courts relied upon the rule as announced in John. However, this court modified the rule approximately four months after the appellate court rendered its opinion. See Chapski v. Copley Press (1982), 92 Ill. 2d 344.

In Chapski, it was determined that the rule, as originally announced, was not applied in a uniform manner. Inconsistency, inequity, and confusion resulted from dozens of appellate court cases interpreting and applying the rule. The principal criticism being that, because of the rule’s mandatory language, courts generally strained to find innocent meanings of words where a defamatory meaning was far more reasonable. Therefore, this court was persuaded that a modification of the rule was necessary to protect the individual’s interest in vindicating his good name and reputation, while allowing the first amendment guarantees that “breathing space” essential to their faithful exercise. (92 Ill. 2d 344, 350-51.) The rule, as modified, is:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.” 92 Ill. 2d 344, 352.

As above noted, it appears that the trial and appellate courts did not apply the rule as modified by Chapski. The plaintiff here should have the opportunity to have the trial court make that determination.

For the above reasons, the judgments of the appellate and circuit courts are vacated and the cause is remanded to the circuit court of Cook County for further proceedings consistent with the views expressed herein.

Judgments vacated; came remanded.

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


author: JUSTICE SIMON

text:
    (No. 57492.
    THOMAS MALONE, Appellee, v. JERRY COSENTINO, State Treasurer, et al., Appellants.

      Opinion filed December 1, 1988.

      Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen and Rosalyn Kaplan, Assistant Attorneys General, of Chicago, of counsel), for appellant Jerry Cosentino.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Bruce R. Meckler, Assistant State’s Attorney, of counsel), for appellant county officials.
    Larry D. Drury, of Chicago, and Berle L. Schwartz, of Highland Park, for appellees.
    James A. Murphy, of Peoria, for amicus curiae Illinois Association of Chiefs of Police, Inc.
   JUSTICE SIMON

delivered the opinion of the court:

At issue here is whether the class plaintiff, Thomas Malone, may bring this civil class action suit challenging the constitutionality of certain fines levied against himself and the other class members in collateral criminal proceedings. We hold that this action is an impermissible collateral attack on the plaintiff’s criminal conviction and on the judgments rendered against the other class members.

On May 19, 1982, Malone appeared in the circuit court of Cook County and pleaded guilty to two traffic violations. He was fined $35 for improper lane usage and $225 for driving with a blood alcohol concentration of 0.10% or more. He was also sentenced to one year of supervision for the alcohol-related offense. The total amounts of the fines included $24.50 in penalty assessments required by section 5 — 9—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 9 — 1 (every fine imposed in a criminal proceeding or traffic offense “shall include an amount payable to The Traffic and Criminal Conviction Surcharge Fund of the State Treasury in accordance with the [table set out in the statute]”)), and $10 in fees authorized by section 25.43 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1981, ch. 34, par. 429.27 (authorizing a $5 fee to be added to all fines imposed for a violation of the Illinois Vehicle Code to provide proceeds for financing the court system)).

Malone did not appeal from his conviction or the sentence of supervision and the imposition of fines. On July 2, 1982, however, he filed this class action against Jerry Cosentino, the State Treasurer; Morgan Finley, the clerk of the circuit court of Cook County; Edward Rosewell, the treasurer of Cook County; James R McCourt, the Cook County circuit court judge who sentenced Malone for the traffic violations; and the city of Northfield. The plaintiff’s complaint alleged that the defendants are charged by statute with the responsibility of collecting and distributing the penalty assessments imposed under section 5 — 9—1(c) of the Unified Code of Corrections and the fees authorized by section 25.43 of “An Act to revise the law in relation to counties.” This appeal concerns counts II, III and IV of the plaintiff’s first amended complaint, where he alleged that the penalty assessments and fees authorized by these statutes are unconstitutional under the equal protection clauses of the State and Federal constitutions (Ill. Const. 1970, art. I, sec. 2; U.S. Const., amend. XIV, sec. 1), as well as under article VII, section 9(a) of the State Constitution, which provides: “Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. *** Fees shall not be based upon funds disbursed or collected ***.” (Ill. Const. 1970, art. VII, sec. 9(a).) The complaint sought an injunction against the collection or distribution of the proceeds of the allegedly unconstitutional penalties and fees and an accounting of all assessments made against the class members.

The defendants moved to dismiss the plaintiff’s complaint on the grounds that it was an impermissible collateral attack on his prior criminal conviction and sentence. After denying this motion and conditionally granting the plaintiff’s motion for class certification, the circuit court granted the plaintiff’s motion for judgment on the pleadings and held that the fee and penalty assessment statutes are unconstitutional under article VII, section 9(a), of the Illinois Constitution; the equal protection clauses of the State and Federal constitutions; and the doctrine of separation of powers. The defendants appealed directly to this court. 87 Ill. 2d R. 302(a)(1).

“A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding ***.” (49 C.J.S. Judgments sec. 401 (1947).) This court has long recognized this principle as the law of this State. As early as 1850, this court stated that when jurisdiction is established a court’s judgment “being thus entered by authority of law, no matter how erroneous it may be, or even absurd — -though it be made in palpable violation of the law itself, and manifestly against the evidence — is, nevertheless, binding upon all whom the law says shall be bound by it, that is, upon all parties and privies to it, until it is reversed in a regular proceeding for that purpose. While it remains a judgment, it cannot be inquired into, nor its regularity questioned, in any collateral proceeding.” (Young v. Lorain (1850), 11 Ill. 624, 637.) Once a court with proper jurisdiction has entered a final judgment, that judgment can only be attacked on direct appeal, or in one of the traditional collateral proceedings now defined by statute. Ill. Rev. Stat. 1981, ch. 110, pars. 10— 101 to 10 — 137 (habeas corpus); Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401 (relief from judgments); Ill. Rev. Stat. 1981, ch. 38, pars. 122 — 1 to 122 — 7 (post-conviction hearing).

It is not contested that the circuit court had jurisdiction to convict and sentence Malone for his traffic violation. In those proceedings Malone could have challenged the constitutionality of the penalties and fees imposed, and if he had done so he could have also raised the issue on direct appeal. After allowing the circuit court’s judgment to become final, he is barred from raising the constitutional issue in this ad hoc collateral proceeding. See Walker v. Cockrell (1982), 110 Ill. App. 3d 562, 564 (class action alleging unconstitutionality of statute authorizing circuit court clerk to retain 10% of bail-bond deposits for costs is improper collateral attack); Morgan v. Finley (1982), 105 Ill. App. 3d 80, 82-84 (class action alleging that imposition of fines and costs in connection with orders of supervision is unconstitutional is improper collateral attack); see also Roth v. Yackley (1979), 77 Ill. 2d 423, 430 (Underwood, J., dissenting); Sanner v. Champaign County (1980), 88 Ill. App. 3d 491, 495-97.

Malone argues that this class action is a new action with different issues and parties than the prior criminal proceeding and that under these circumstances neither res judicata nor collateral estoppel applies. In response, the defendants correctly observe that they rely here on the doctrine of collateral attack. “There is some relationship between the doctrines of res judicata and collateral attack, in that both doctrines involve the effect of a judgment in subsequent independent legal proceedings ***. [However,] a determination of the question whether a particular judgment may be subjected to a collateral attack does not necessarily involve an inquiry regarding the scope and effect of the judgment as a former adjudication upon the facts or causes of action included therein.” (46 Am. Jur. 2d Judgments sec. 399 (1969).) In this class action the defendant is attempting to avoid a portion of the judgment entered against him by the circuit judge by recovering the fines imposed for his traffic violation. Unless such attacks are channelled into one of the established forms of collateral proceedings, they are barred.

Malone argues that even if this class action is a collateral attack on his criminal conviction, it is permissible because the penalties and fees imposed on him were unconstitutional. To support this argument Malone relies on People v. Warr (1973), 54 Ill. 2d 487, 491-93, and People v. Meyerowitz (1975), 61 Ill. 2d 200, 205-06, both cases where this court allowed individual criminal defendants to maintain collateral proceedings attacking the constitutionality of the judgment against them even though there was no specific statutory authority for such actions. In doing so, this court “recognized that considerations of justice and fairness require that an accused who asserts a substantial denial of his constitutional rights in the proceedings in which he was convicted be afforded a procedure by which the challenged proceedings may be reviewed.” (People v. Meyerowitz (1975), 61 Ill. 2d 200, 205.) In Meyerowitz the court also emphasized that the circuit court had continuing jurisdiction over the defendants in that case because they were still under probation when they initiated the post-conviction proceedings. 61 Ill. 2d 200, 206.

Even if the circuit court here had the continuing jurisdiction over Malone that the circuit court had over the defendants in Meyerowitz, a collateral attack on the judgment against Malone and on the judgments imposed on numerous other persons who were not parties to the proceedings in which Malone was convicted is not a fair or appropriate procedure in this case. Here there is no unconstitutional deprivation of liberty as in Warr, nor is there an unconstitutional conviction to be expunged from the defendants’ records as in Meyerowitz and McCabe v. Burgess (1979), 75 Ill. 2d 457. Malone has not alleged a substantial denial of constitutional rights which would serve as justification for allowing a nonstatutory post-conviction remedy. (Cf Johnston v. City of Bloomington (1979), 77 Ill. 2d 108 (collateral attack on conviction for violation of municipal ordinance not permissible).) The only relief Malone seeks on his own behalf is recovery of allegedly unconstitutional fees and penalty assessments in the amount of $34.50, which in our judgment is not a substantial matter.

Moreover, neither Meyerowitz nor Warr involved an attempt to challenge the constitutionality of a criminal judgment in a civil class action proceeding. Nothing in either case suggests that fairness and justice require that Malone be allowed to maintain a class action even though he has no opportunity for individual post-conviction relief.

Because of our disposition of the case we do not reach the merits of Malone’s claim that the penalties and fees imposed on him were unconstitutional. Our treatment of the case renders moot his motions to strike materials contained in the defendants’ briefs and dealing with the merits, and those motions are thus dismissed.

For the reasons stated we hold that this civil class action is an impermissible collateral attack on Malone’s criminal conviction, and that the circuit court erred in denying the defendants’ motion to dismiss the complaint. The judgment of the circuit court of Cook County is reversed and the cause is remanded to that court with directions to grant the defendant’s motion to dismiss.

Judgment reversed; cause remanded, with directions.


author: JUSTICE GOLDENHERSH

text:
    (No. 57634.
    LINDA STANISLAWSKI et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (Stauffer Chemical Company, Appellee).

      Opinion filed December 1, 1983.

    Coniglio & Pigato, of Chicago Heights, for appellants.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (Mark A. Braun and Alfred S. Vano, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that on August 18, 1978, while employed by respondent, Stauffer Chemical Company, Antoni Stanislawski sustained accidental injuries arising out of and in the course of his employment, causing his death. He left surviving his widow, petitioner Linda Stanislawski, and their three minor children. The arbitrator awarded compensation under section 7(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(a)) and burial expenses under section 7(f) (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(f)) but denied petitioner’s claim for additional compensation under section 19(m) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(m)). On review, the Industrial Commission affirmed the decision of the arbitrator. On certiorari, the circuit court of Cook County confirmed the decision of the Industrial Commission and petitioner appealed. Supreme Court Rule 302(a) (87 Ill. 2d R. 302(a)).

Section 19(m) provided:

“(m) If the commission finds that an accidental injury was directly and proximately caused by the employer’s wilful violation of a health and safety standard under the ‘Health and Safety Act’, approved March 16, 1936, as now or hereafter amended, in force at the time of the accident, the arbitrator or the Commission shall allow to the injured employee or his dependents, as the case may be, additional compensation equal to 25% of the amount which otherwise would be payable under the provisions of this Act exclusive of this paragraph. The additional compensation herein provided shall be allowed by an appropriate increase in the applicable weekly compensation rate.” Ill. Rev. Stat. 1977, ch. 48, par. 138.19(m).

Section 4(d) of the Health and Safety Act in pertinent part provided:

“(d) All federal occupational safety and health standards which the United States Secretary of Labor has heretofore promulgated, modified or revoked in accordance with the Federal Occupational Safety and Health Act of 1970, shall be and are hereby made rules of the Illinois Industrial Commission unless the Illinois Industrial Commission shall make, promulgate, and publish an alternate rule at least as effective in providing safe and healthful employment and places of employment as a federal standard.” Ill. Rev. Stat. 1977, ch. 48, par. 137.4(d).

In denying an award for additional compensation claimed under section 19(m) the Industrial Commission, relying on its decisions in Simpson v. Martin-Marietta Corp. (1980), Opinion No. 81 IIC 417(a), and Fleming v. Celotex Corp. (1981), Opinion No. 81 IIC 417, held that by reason of the enactment of the Occupational Safety and Health Act of 1970 (OSHA) (29 U.S.C. sec. 651 et seq. (1976)) all State enforcement of industrial safety laws was preempted. It found that although Illinois had submitted a plan for the development and enforcement of State occupational and safety health standards the plan was subsequently withdrawn and that OSHA presently enforces the Federal standards in Illinois.

It is petitioner’s contention that she should have been permitted to prove that the accident which caused the death of the decedent was directly and proximately caused by the respondent’s wilful violation of a health and safety standard in effect under the provisions of the Health and Safety Act and that the award should be increased by 25%. It is, of course, respondent’s contention that enforcement of the standards has been preempted under the Federal legislation and that the judgment should be affirmed.

Title 29 U.S.C., section 655 (1976), provides for the adoption of occupational safety and health standards and the procedures for so doing.

Title 29 U.S.C., section 667(a), provides:

“Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title.” 29 U.S.C. sec. 667(a) (1976).

Section 667(b) of title 29 provides that a State which desires to assume responsibility for development and enforcement of occupational safety and health standards with respect to which a Federal standard has been promulgated shall submit a State plan for the development of such standards and their enforcement. (29 U.S.C. sec. 667(b) (1976).) Illinois had submitted such a plan, but it was withdrawn on June 30, 1975. Section 1901.2 of the regulations adopted by the Occupational Safety and Health Review Commission provides:

“Section 18(a) of the Act is read as preventing any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which a Federal standard has been issued under section 6 of the Act.” 29 C.F.R. sec. 1901.2 (1982).

Title 29, section 653(bX4), provides:

“Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” 29 U.S.C. sec. 653(b)(4) (1976).

The decisions of the Supreme Court leave no doubt that when Congress has declared its intent, either explicitly or implicitly, that its enactments alone regulate a part of commerce, State laws are preempted. Jones v. Rath Packing Co. (1977), 430 U.S. 519, 51 L. Ed. 2d 604, 97 S. Ct. 1305; Ray v. Atlantic Richfield Co. (1978), 435 U.S. 151, 55 L. Ed. 2d 179, 98 S. Ct. 988.

Title 29, section 655, explicitly provides for the adoption of Federal standards of industrial safely, leaving to the States jurisdiction over “any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title.” (29 U.S.C. sec. 667(a) (1976); 29 C.F.R. sec. 1901.2 (1982).) Section 4(d) of the Health and Safety Act (Ill. Rev. Stat. 1977, ch. 48, par. 137.4(d)) purports to adopt as rules of the Industrial Commission, in direct conflict with title 29, section 667(a), standards adopted under title 29, section 655. Title 29, section 667(b), provides the only method by which a State may assume responsibility for development and enforcement of safety and health standards with respect to which Federal standards have been adopted, and the enactment of section 4(d) did not effect the adoption of the rules.

Petitioner asserts in her brief that the standard violated by respondent, and upon which she bases her claim for additional compensation, is a standard promulgated by OSHA. In view of our holding that the adoption of standards was preempted and that no plan was adopted under which the State would assume jurisdiction, there was no standard in force and effect to which the provisions of section 19(m) could be made applicable. The Commission correctly held that the matter was preempted, and the judgment of the circuit court confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.


text:
    (No. 57674.
    AMERICAN STRUCTURES, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Eugene Spivey, Appellant).

      Opinion filed December 1, 1983.

      August M. Mangoni, Ltd., of Chicago (August M. Mangoni and Louis G. Atsaves, of counsel), for appellant.
    Rosenberg, Rosenberg, Bickes, Johnson & Richardson, Chartered, of Decatur (David L. Johnson, of counsel), for appellee.
   JUSTICE WARD

The claimant, Eugene Spivey, appeals to this court under Rule 302(a) (87 Ill. 2d R. 302(a)) from a judgment of the circuit court of Macon County, which reversed a decision of the Industrial Commission. The Commission had reinstated a petition of the claimant to review disability payments under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)). On certiorari the circuit court dismissed the petition on the ground that it was not timely filed. The claimant’s contention is that the circuit court did not have jurisdiction to review the case.

A history of the case will be helpful to an understanding of the present dispute. On September 6, 1973, the claimant filed an application for adjustment of claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) for injuries sustained on March 27, 1973, while he was employed by the respondent, American Structures, Inc. The arbitrator made an award for temporary total disability benefits, medical expenses, and permanent partial disability benefits representing a 25% disability of the left arm, a 20% disability of the right leg, and a 20% disability of the left leg.

On review, the Industrial Commission modified the award on March 22, 1976, increasing the award of medical expenses and the award for permanent partial disability of the left arm from 25% to 30%. American Structures, Inc., was granted certiorari to the circuit court, and on March 8, 1977, the circuit court remanded to the Commission to reduce the award for medical expenses by $1,320.10 and to vacate the awards for disabilities of the claimant's legs. (The record does not explain the extraordinary and deplorable delays in these proceedings.)

Without waiting for the Commission to act following the remandment by the circuit court, the claimant on March 17, 1977, filed a notice of appeal to this court. As the award had not been modified by the Commission as the circuit court had ordered, this court dismissed the appeal because there was no appealable order. See Metropolitan Sanitary District v. Industrial Com. (1967), 37 Ill. 2d 447, 449-50.

On October 19, 1978, claimant filed with the Commission a petition under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)), alleging increased disability of the claimant and seeking review of the award. (The filing of a petition under section 19(h) is independent of the original claim proceedings. See Howard v. Industrial Com. (1980), 81 Ill. 2d 50, 59-60.) The petition was dismissed for want of prosecution on May 18, 1979. On May 30, 1979, the claimant filed a second section 19(h) petition, which the Commission dismissed on October 9, 1979, for want of jurisdiction. In the interim the Commission, on June 8, 1979, modified its award in compliance with the circuit court’s remand order of March 22,1976.

On July 3, 1980, the claimant filed a third section 19(h) petition, which on December 31, 1980, was also dismissed for want of jurisdiction. On January 27, 1981, the claimant filed a petition styled “Petition for Writ of Scrivener’s Error” with the Commission. Hearings were held on March 25, 1981, and September 29, 1981, and on February 4, 1982, the Commission issued an order granting the petition and reinstating the section 19(h) petition. The Commission set a date for hearing on the petition.

The circuit court of Macon County granted certiorari on December 6, 1982, on the respondent’s petition. The court dismissed the section 19(h) petition on the ground that it had not been filed within the time prescribed by section 19(h) (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(h)). The claimant appealed from the circuit court’s order directly to this court. 87 Ill. 2d R. 302(a).

The claimant contends that the Commission’s order reinstating the section 19(h) petition was interlocutory, and that therefore the circuit court could not acquire jurisdiction to review the order.

In considering whether the circuit court had jurisdiction, we would observe that this court has held consistently that interlocutory orders of the Industrial Commission are not reviewable by the circuit court. (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 185; Metropolitan Sanitary District v. Industrial Com. (1967), 37 Ill. 2d 447, 449.) Section 19(f)(1) of the Act gives jurisdiction to the circuit court to review decisions of the Industrial Commission by writ of certiorari (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f)(1)), and this court has interpreted this to mean that only final determinations by the Commission are reviewable (Metropolitan Sanitary District v. Industrial Com. (1967), 37 Ill. 2d 447, 449; see also International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 185).

Here the Commission’s order basically granted the “Writ of Scrivener’s Error,” reinstated the section 19(h) petition, and set a date for a hearing on the section 19(h) petition. Clearly this was interlocutory and not a final determination of the petition’s merits. No hearing was held on the petition before the circuit court granted certiorari. Thus, the circuit court was without jurisdiction to review the interlocutory order.

For the reasons given, the judgment of the circuit court of Macon County is vacated, and the cause is remanded to the Industrial Commission for further proceedings.

Vacated and remanded.


author: JUSTICE CLARK

text:
    (No. 57751.
    JOHN J. GORDON et al., Appellants, v. THE DEPARTMENT OF TRANSPORTATION, Appellee.

      Opinion filed December 1, 1983.

      William A. Kelly, of Nack, Richardson & Kelly, of Galena, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Karl Yost, Special Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Plaintiffs, John J. Gordon, John F. Gordon, and Savanna State Bank, filed suit against defendant, the Department of Transportation of the State of Illinois, to obtain a writ of mandamus compelling the defendant to commence condemnation proceedings concerning property allegedly owned by plaintiffs John J. Gordon and John F. Gordon and mortgaged to Savanna State Bank. On May 20, 1980, the defendant filed a motion to strike that was denied by the trial court. The subject matter of the lawsuit was a parcel of land adjacent to John J. Gordon’s restaurant that was needed by the State to construct a public road. The circuit court of Carroll County granted the requested writ of mandamus, and the State appealed. The appellate court reversed the circuit court (109 Ill. App. 3d 1071), and we granted the plaintiffs’ petition for leave to appeal (87 Ill. 2d R. 315(a)).

John J. Gordon purchased a restaurant known as Meeker’s Seafood Inn on July 14, 1956. The property is located south of Savanna, Illinois, near Illinois Route 84, and had been used to operate a restaurant since 1942. Gordon continued to operate the restaurant until March 6, 1972, when the restaurant was sold on contract to Gary Harmsen. Harmsen defaulted, and the Savanna State Bank instituted foreclosure proceedings in 1976. Gordon remained the owner of the property, and the Savanna State Bank had a security interest in the property at the time of the lawsuit to compel eminent domain proceedings.

A blacktopped parking lot was located immediately adjacent to the restaurant, and the description in the 1956 deed to Gordon did not include the portion of the parking lot claimed by Gordon and the State of Illinois. In 1977, the Department of Transportation of the State of Illinois was constructing a new bridge across the Plum River near Savanna, and the northern approach to this bridge passed through the parking lot next to Gordon’s restaurant. The record title owner of the disputed parking lot was Oskar Skaien, who quitclaimed his interest to the State of Illinois in order to facilitate the building of the new bridge.

The Gordons claim ownership of the parking lot by adverse possession. The State claims ownership based on the 1977 conveyance from Skaien or by common law dedication. The trial court ruled in favor of the plaintiffs, reasoning that John J. Gordon and his predecessors had adversely possessed the disputed property since 1942, and issued a writ of mandamus compelling the State to commence condemnation proceedings.

We agree with the appellate court’s reversal of the circuit court, since the circuit court was without jurisdiction in this case. The action should have been brought in the Court of Claims, because the State of Illinois was the real party in interest in the lawsuit. Sections 8(a) and (b) of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, pars. 439.8(a), (b)) provide, in pertinent part:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the state founded upon any law of the State of Illinois, or upon any regulation thereunder * * *
(b) All claims against the state founded upon any contract entered into with the State of Illinois.”

Section 4 of article XIII of the Illinois Constitution of 1970 provides:

“Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

Section 1 of “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1979, ch. 127, par. 801) provides:

“Except as provided in ‘An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal An Act herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.”

In the case at bar, the State of Hlinois has title to the disputed property. Since the State acquired the property by quitclaim deed, it is clear that the Court of Claims, and not the circuit court, had jurisdiction. It is the legislature’s task to codify public policy; we refrain from undertaking such impermissible judicial legislation. (S. J. Groves & Sons Co. v. State (1982), 93 Ill. 2d 397, 407.) We need not reach the question of whether a different result would obtain if the State were not the actual owner of the property. (See also Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 268-69; Sass v. Kramer (1978), 72 Ill. 2d 485, 489; Comment, State Immunity in Illinois: The Court of Claims, 15 DePaul L. Rev. 340, 342-44 (1966).

Since the issue of jurisdiction is dispositive, we need not reach the question of whether plaintiff acquired title to the disputed property by adverse possession. Here, the circuit court lacked jurisdiction to consider plaintiff’s complaint for a writ of mandamus to compel eminent domain proceedings.

We therefore conclude that the appellate court properly reversed the order of the circuit court that issued the writ of mandamus.

Judgment affirmed.