author: MR. JUSTICE MORAN

text:
    (No. 51073.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. EUGENE WAYNE JOHNSON, Appellee.

      Opinion filed March 20, 1979.

      William J. Scott, Attorney General, of Springfield, and Thomas J. Fahey, State’s Attorney, of Danville (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Robert C. Perry and Marc D. Towler, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, of Springfield (Barbara A. Chasnoff, Assistant Defender, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

After a jury trial in the circuit court of Vermilion County, the defendant, Eugene Wayne Johnson, was convicted of battery and cruelty to children, and acquitted of aggravated battery. He was sentenced to a term of imprisonment of not less than 1 year nor more than 3 years. Though defendant raised numerous issues in the appellate court, the court addressed only defendant’s contention that he was denied the right to effective assistance of counsel. The appellate court reversed and remanded for a new trial, holding that defendant’s waiver of competent counsel was insufficient. (61 Ill. App. 3d 819.) After granting the State leave to appeal, we ordered that argument in this court be limited to the specific issue decided by the appellate court. People ex rel. Hahn v. Hurley (1956), 9 Ill. 2d 74, 79-80.

On the morning of the second day of trial, the trial judge caUed the defendant, his privately retained counsel and the court reporter into chambers and, outside the presence of both the prosecutor and the jury, addressed the defendant personally. The judge first inquired into defendant’s education and his ability to read and write the English language. Upon being satisfied that the defendant was of above-average intelligence and able to understand the remarks about to be made, the judge informed defendant that he was of the opinion that defendant was not receiving assistance of competent counsel. The judge proceeded to enumerate the factors which led him to such conclusion. He referred to repeated disruptions caused by defense counsel and stated that he was “disturbed by the asking of questions and inquiring into certain areas which are inappropriate by [defense counsel] and the failure to ask questions which are appropriate for your defense.” The judge expressed particular concern that defense counsel’s failure to attempt to keep certain incriminating statements from the jury may have seriously prejudiced defendant’s case.

The judge then advised the defendant of his constitutional right to have an attorney of his own choosing and to have an attorney appointed for him if he was financially unable to employ one, and then provided the defendant with the following alternative:

“I am prepared to proceed with this trial with [present counsel] representing you as long as you understand that I have serious questions as to competency and that if you proceed with [him] as your Counsel at this time you waive or give up the right to object later to the fact that he did not provide you competent Counsel or give you good advice or do his job well. If on the other hand you feel that you wish to have other Counsel appointed for you to represent you, I will upon your motion declare a mistrial in this case and allow the trial to start over with other Counsel.”

The judge noted that he had considered the possibility of calling in standby or assistant counsel to aid in the defense, but had concluded that it would not be possible to adequately apprise such counsel of the previous day’s proceedings. After the judge repeated the alternatives, defendant stated that he understood fully. The judge called a short recess to enable the defendant to consult with his family and his counsel before making a decision. At the conclusion of the recess, the defendant advised the court that he wished to proceed with the same counsel. The judge stated for the record that the defendant’s waiver of competent counsel was made knowingly and voluntarily. The case then resumed.

As the appellate court recognized, the trial judge was thrust into a curious position in endeavoring to protect the rights of the defendant. The defendant’s constitutional right to counsel entitles him both to effective assistance by counsel and to counsel of his own choosing. Typically, both corollaries coexist symbiotically. Here, however, where the judge had determined that defendant’s choice of counsel was not providing the defendant with competent representation, one had to be sacrificed. The trial judge could not force the defendant to retain counsel other than counsel of defendant’s own choosing. In Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525, a trial judge refused to allow the defendant to represent himself after determining that the defendant could not do so competently. The Supreme Court, in declaring that criminal defendants have a constitutional right to represent themselves, held that the trial judge could not force the defendant to accept court-appointed counsel if he insisted upon representing himself.

Similarly, in People v. Friedrich (1960), 20 Ill. 2d 240, a trial judge refused to allow the defendant to retain his chosen counsel after determining that such counsel, due to a conflict of interest, could not competently represent him. This court held that the trial court had deprived the defendant of the right to counsel of his own choice. In so holding, the court stated that the defendant had the “unquestioned privilege” to waive his right to separate counsel who would be free from conflicting interests. 20 Ill. 2d 240, 255.

In the case at bar, defendant’s right to counsel of his own choice, like Faretta’s right to represent himself and Friedrich’s right to counsel of his own choice, required that he be allowed to make a voluntary, knowing and understanding waiver of the right to competent counsel in order to receive the representation of his choice. (Accord, United States v. Garcia (5th Cir. 1975), 517 F.2d 272.) Neither party disputes the conclusion that defendant can waive his right to competent counsel. The dispute is whether the admonitions of the trial judge sufficiently assured that the defendant’s waiver was voluntary, knowing and understanding.

The appellate court held that the trial judge’s admonitions were insufficient because they did not comport with those under Supreme Court Rule 401(a) (58 Ill. 2d R. 401(a)). Rule 401(a) requires that prior to permitting a waiver of counsel by a person accused of an offense punishable by imprisonment, the court must inform the defendant of and determine that he understands (1) the nature of the charge; (2) the minimum and maximum sentence prescribed by law; and (3) his right to counsel and the right to appointment of counsel if indigent. This rule, however, was not intended to apply to the novel situation which here confronted the trial judge. The rule applies when a criminal defendant waives counsel entirely and elects, instead, to represent himself. Here, defendant did not seek to waive counsel and represent himself, but, rather, elected to proceed with counsel of his own choosing despite the judge’s caution that that counsel was incompetent. Rule 401(a) is inapplicable under these circumstances.

We must, however, determine whether defendant’s waiver of his constitutional right to competent counsel was valid. (See People v. Barker (1975), 62 Ill. 2d 57.) Waiver of a constitutional right is valid only if it is clearly established that there was “an intentional relinquishment or abandonment of a known right ***.” (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023.) “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (Brady v. United States (1970), 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469.) The object of these standards is to insure, based on the totality of circumstances evident in the record, that the defendant was able to make a rational choice from among the alternatives available to him.

A review of the record reveals that the defendant’s waiver of competent counsel was voluntarily, knowingly and understandingly made. Defendant waived his right to competent counsel on the morning of the second day of trial. By that time, defendant had become aware of the nature and severity of the charges against him. He had been present at his arraignment when the judge stated that he was charged with aggravated battery, battery and cruelty to children. He had heard the prosecutor’s opening statement, which outlined the case the State expected to establish. He had also heard the entire testimony of the complaining witness and the testimony of three other State’s witnesses and had observed the performance of his retained counsel. Immediately before admonishing the defendant regarding the choice he was being called upon to make, the trial judge ascertained that defendant was capable of understanding the colloquy which was to follow. The judge’s subsequent admonitions could scarcely have been more thorough. The defendant suggests that the trial judge failed to expressly inform the defendant that a likely consequence of proceeding with his existing counsel was that certain evidence relevant to his defense would never be presented to the jury. This was an obvious implication of the judge’s remarks to the defendant. The judge’s failure to expressly state the obvious does not render ineffective an otherwise voluntary, knowing and understanding waiver. We are convinced that defendant was sufficiently aware of the likely consequences of continuing with incompetent counsel, and, therefore, hold the defendant’s waiver of competent counsel was valid.

The defendant raises one final point and directs our attention to the trial judge’s statement that defendant be given an opportunity to consult with counsel before making a decision. The defendant contends that there is a fatal weakness in the procedure which has him seek advice as to the consequences of continuing with incompetent counsel from the very person whose competence was in question. We disagree. Immediately preceding the suggestion, the judge had addressed his remarks personally to the defendant. The judge avoided addressing the defendant through his retained counsel, specifically because the defendant himself had to be apprised of the likely consequences of the choice he would have to make. The judge had not only provided the defendant with the advice necessary to make a rational choice, but had expressly advised him that no one could tell him whom he would retain as his attorney and that the judge would again be available to answer any questions which defendant might have after consultation with counsel. Appointment of separate counsel to advise the defendant on that which the judge himself had advised him would have been of no additional assistance. Only the defendant could make the decision. Upon scrupulously advising the defendant of his counsel’s incompetence, the trial judge could not forbid the defendant from consulting with his retained counsel any more than he could prevent the defendant from continuing to be represented by such counsel during trial. In providing the defendant with an opportunity to consult with counsel, the trial judge was merely apprising him of a right which could not be denied him. Under the circumstances, we do not find that the opportunity provided the defendant to consult with his retained counsel prevented him from effectuating a valid waiver of his right to competent counsel.

For the reasons stated, the judgment of the appellate court is reversed and the cause remanded to the appellate court for consideration of the remaining issues raised in defendant’s appeal.

Reversed and remanded.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 50673.
    BARNEY SHOCKLEY, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Ozark Mahoning Co., Appellee.)

      Opinion filed March 20, 1979.

      Harris & Lambert, of Marion, for appellant.
    Keefe & De Pauli, P.C., of East St. Louis, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The Industrial Commission affirmed an arbitrator’s award of $105.50 per week for 64 weeks for temporary total incapacity, and of $83.20 per week for 38 3/8 weeks for “permanent and complete loss of use of the left foot to the extent of 25% thereof” to the claimant, Barney Shockley. On two separate occasions, in September 1973 and April 1975, while in the course of his employment as a miner and driller with Ozark Mahoning Co. (hereafter Ozark), the claimant sustained injuries to his left foot and ankle. The claimant, contending the award was insufficient, appealed to the circuit court of Hardin County, which confirmed the award. Ozark did not cross-appeal from the Commission’s award. The appeal is here under our Rule 302(a) (58 Ill. 2d R. 302(a)). Two issues are raised.

First, Should the testimony of Dr. William Costen, taken in a deposition for evidence and offered on behalf of Ozark, have been stricken by the Commission? The claimant argues that the testimony was inadmissible because Dr. Costen did not treat, but only once examined, the claimant, and because Dr. Costen’s opinion was partly based on a history supplied by the claimant. Ozark failed to address this issue. The claimant correctly cites Crane Co. v. Industrial Com. (1965), 32 Ill. 2d 348, 353, for the proposition that “the opinion of a medical expert who does not treat the patient, but examines him for the purpose of testifying, is not admissible if it rests partly upon the expert’s own observation, and partly upon a history of subjective symptoms supplied by others.” However, the claimant ignores the next sentence in Crane: “[T]he mere fact that an examining physician obtains a history from the patient does not disqualify his expert testimony based on objective findings or upon a hypothetical question.” (Emphasis added.) (32 Ill. 2d 348, 353; accord, Excelsior Leather Washer Co. v. Industrial Com. (1973), 54 Ill. 2d 318, 325.) Stipulated facts established a causal connection between claimant’s injury and employment, so it is doubtful Dr. Costen’s testimony was offered for that purpose. Rather, it was offered for the purpose of establishing the extent of claimant’s injury — the same purpose for which claimant and his witness testified. Moreover, apropos of the extent of claimant’s injury, Dr. Costen’s objective findings included, the record shows, examination of the claimant and of X rays of his foot and ankle. The testimony was properly admitted because his opinion was based on this examination rather than on the history supplied by the claimant.

Second, Was the decision of the Commission insufficient and contrary to the manifest weight of the evidence? The record before us persuades us that the decision was proper. The claimant testified that he had been hospitalized, was examined. or treated by various physicians (including Drs. Costen and John Barrow), and felt pain in his back after the first accident on September 6, 1973. In April 1975 he returned to work, and, at the end of April, suffered the second injury. He testified that he has been regularly treated by Dr. Barrow; feels pain in his foot, ankle, leg and the lower region of his back; uses a cane; and has not been “released *** to go back to work.” Dr. Barrow, an orthopedic surgeon, testified that the claimant “sustained a severe, crushing type injury” to his left forefoot; has complaints of arthritis in and swelling on the foot; has pain in his back which “will continue to give him a considerable amount of trouble as long as he is as heavy as he is”; and will be unable to return to the same type of work. Dr. Costen, also an orthopedic surgeon, testified that he examined the claimant, who complained of nothing but his foot and ankle, only once; performed various tests and took X rays; and concluded that, despite the seriousness of the injury to the foot, the claimant would be able to work.

“The determination of the extent of disability is a conclusion based upon a proper evaluation of objective conditions or symptoms.” (Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 319.) “It is primarily the province of the Commission to determine questions of fact, including ones relating to the nature and extent of disability.” (Ketchum v. Industrial Com. (1969), 43 Ill. 2d 166, 168.) We cannot say that the testimony of the claimant and his witness, Dr. Barrow, was unrebutted as in Kerz v. Industrial Com. (1972), 51 Ill. 2d 319. Moreover, Dr. Costen stated that the claimant only complained of injury to his left foot and ankle. The Commission has the prerogative to decide disputed questions of fact; resolve conflicting testimony, including conflicting medical testimony; and draw reasonable inferences. (Ford Motor Co. v. Industrial Com. (1976), 62 Ill. 2d 337, 341-42.) Our role is not to discard the findings of the Commission, even though we might have decided differently on the same facts, unless those findings are contrary to the manifest weight of the evidence. We are unable to say they are here.

For these reasons the judgment of the circuit court of Hardin County is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51050.
    HEALTH & HOSPITALS GOVERNING COMMISSION OF COOK COUNTY, Appellee, v. THE INDUSTRIAL COMMISSION et al.—(Christine Watkins, Appellant.)

      Opinion filed March 20, 1979.

    David M. Wittenberg, of Chicago, for appellant.
    William P. Tuggle, Joan M. Pucillo, and Frank J. Oles, of Chicago, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

On finding that notice of the accident was not given her employer within the period provided in section 6(c) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c)), an arbitrator for the Industrial Commission denied petitioner, Christine Watkins, compensation for injuries suffered on May 3, 1976, while in the employ of the respondent, Health & Hospitals Governing Commission of Cook County. On review the Industrial Commission set aside the decision of the arbitrator and awarded petitioner compensation. Inter alia, the Commission found “that notice of said accident was given the respondent within the time required under the provisions of said Act.” On certiorari the circuit court of Cook County reversed the decision of the Commission and petitioner appealed.

On May 3, 1976, the date of petitioner’s injury, section 6(c) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c)) provided:

“Notice of the accident should be given to the employer as soon as practicable, but not later than 45 days after the accident, and if the Commission shall find that the failure to give such notice within 45 days substantially prejudiced the rights of the employer, the Commission in its discretion, may order that the right of the employee to proceed under this Act shall be barred.”

Effective October 1, 1976, section 6(c) was amended in pertinent part to provide: “Notice of the accident shall be given to the employer as soon as practicable, but not later than 45 days after the accident.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.6(c).) It is stipulated that notice of the accident was given respondent on July 8, 1976, and the application for adjustment of claim was filed on July 9, 1976. Petitioner contends that under the provisions of the statute in force and effect at the time of the injury, and at the time when notice was given, absent a finding by the Commission that the failure to give such notice within 45 days substantially prejudiced the rights of the respondent, the notice was timely given and the circuit court erred in reversing the decision of the Commission. It is respondent’s position that the notice provision in the Workmen’s Compensation Act is procedural, is applicable to pending cases, and that the circuit court correctly held the amended statute applicable in the hearing held on October 15, 1976. Alternatively, respondent argues that it was prejudiced by petitioner’s failure to give notice of the accident within 45 days.

The parties have cited a number of authorities (Railway Express Agency v. Industrial Com. (1953), 415 Ill. 294; Ristow v. Industrial Com. (1968), 39 Ill. 2d 410; Smolen v. Industrial Com. (1926), 324 Ill. 32; Orlicki v. McCarthy (1954), 4 Ill. 2d 342) and have argued the question whether the statutory provision for notice is substantive or procedural. We need not discuss either the authorities or the arguments analogizing the situation here to that presented when a statute is enacted shortening a limitations period. The giving of notice was accomplished on July 8, 1976, and its sufficiency is governed by the statutory provision in effect both at the time of the accident and the time when notice was given. The validity of a notice given on July 8, 1976, cannot be affected by a statutory amendment effective October 1, 1976.

The language of the statute provided that if notice was not given within 45 days of the accident, in the discretion of the Commission the action shall be barred “if the Commission shall find that the failure to give such notice within 45 days substantially prejudiced the rights of the employer.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c).) In the exercise of the discretion specifically vested by the statute, the Commission found that notice of the accident was timely given.

Respondent argues that under Ristow v. Industrial Com. (1968), 39 Ill. 2d 410, there was a conclusive presumption that the employer was prejudiced by the failure to be given notice within the 45 days. In Ristow the Commission found that the claimant failed to give notice of the injury within the 45-day period required by the Act, and the statute then provided: “No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than 45 days after the accident. ***” (Ill. Rev. Stat. 1967, ch. 48, par. 138.6(c).) Here, the Commission found that the notice was timely given and the statutory provision clearly vested in the Commission the discretion to make the determination that failure to give timely notice was not prejudicial to the employer. We have considered the argument that the burden was on petitioner to prove that respondent was not prejudiced, but regardless of who bore the burden of proof on this issue, the finding by the Commission is not against the manifest weight of the evidence. For the reasons stated, the judgment of the circuit court is reversed and the decision of the Industrial Commission is reinstated.

Judgment reversed; award reinstated.


text:
    (No. 50904.

      In re ESTATE OF MAY CROWDER.-(Iris Bennett, Appellant, v. Eugene Wilson et al., Appellees.)

      Opinion filed March 14, 1979.

      Charles J. Kolker, of East St. Louis, for appellant.
    John L. McMullin, of Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, of St. Louis, for appellees Eugene Wilson and Annette Crowder Wilson.
    R. E. Eggmann, of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee Chester J. Dillon.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This action arises out of a series of objections to the probate of the will of the testator, May Crowder. The testator died on August 20, 1970. Her will, dated December 13, 1961, was admitted to probate in Monroe County on December 24, 1970. Letters testamentary were issued to the executor, Chester J. Dillon, on that date.

The will directed the executor to pay the expenses of administration, which specifically included payment of the testator’s just debts, the expenses of her last illness and her funeral, and the taxes resulting from her death. The will further provided that all the testator’s real and personal property be conveyed into a testamentary trust, with the testator’s daughter, Annette C. Wilson, as trustee. The trustee was given unbridled discretion in the management and control of the trust estate and was to be relieved of liability for any depreciation or loss. The beneficiaries of the trust were the three grandchildren (the trustee’s children), Bruce Wilson, Tamara Wilson Koob (now Ellis), and Iris Wilson Hoffman (now Bennett). The will set forth that the trustee was to disburse the trust assets equally to the grandchildren in accordance with the following schedule: when a grandchild attained the age of 25, he or she was to receive one-third of his or her share of the principal and undisbursed income; at age 30, one-half of the remainder of his or her share; and at age 35, the balance of the share. At the time of the testator’s death, Tamara Ellis and Iris Bennett had already attained the age of 35, and Bruce Wilson was 27 years old.

On October 15, 1975, Iris Bennett and Bruce Wilson filed petitions which sought the removal of the trustee, the removal of the executor, an accounting of the trusteeship, and a reconsideration of the executor’s and attorney’s fees which had previously been allowed by the court. The petitions alleged, among other things, that (1) the trustee had failed to provide an accounting of the assets of Dawn Investment Company, a closely held corporation in which the testator was majority shareholder, (2) the trustee had a conflict of interest because her husband, Eugene Wilson (Wilson), was the managing officer of Dawn Investment Company, (3) the trustee had allowed farm property to remain idle and unproductive during the five years since the estate was opened, (4) the executor had failed to turn over the estate assets to the trustee, thereby depriving the beneficiaries of the use and benefit of the assets, and (5) the executor’s failure to diligently file a Federal estate tax return had exposed the estate to substantial penalties and interest. On December 31, 1975, the trial court entered an order which allowed for the distribution of the farm property to the beneficiaries and allowed the trustee, upon her own request, to resign from the position. On February 20, 1976, Iris Bennett and Bruce Wilson filed their objections to the executor’s final accounting. The objections repeated many of the allegations embraced in the earlier petitions and further alleged, among other things, that the accounting failed to include certain jewelry owned by the testator at the time of her death. On September 7, 1976, Iris Bennett filed a petition, subsequently amended, for recovery of assets and discovery of information. This petition alleged, in essence, that the trustee had improperly converted the above-mentioned jewelry for her own use and that Eugene Wilson (trustee’s husband) had caused, to the detriment of the estate, considerable diminution of value in the assets of Dawn Investment Company.

The trial court, having consolidated the issues for the purpose of hearing, entered its final order on February 15, 1977. The order overruled the objections to the final accounting, denied each of the petitions filed by the various beneficiaries, and declared that the jewelry in question became the absolute property of the trustee by inter vivos gift from the testator. Only Iris Bennett (plaintiff) appealed. The appellate court, pursuant to Supreme Court Rule 23 (58 Ill. 2d R. 23) affirmed. (58 Ill. App. 3d 1115.) We granted plaintiff leave to appeal.

Plaintiff presents eight issues for review. We will consider the issues as they affect the estate’s interest in the following four assets: (1) the Dawn Investment Company, (2) the farm property, (3) the jewelry, and (4) the trust estate as a whole.

Dawn Investment Company was a closely held Missouri corporation, the sole assets of which were shares of stock in other corporations. Its only shareholders were the testator and her son-in-law, Wilson. The testator owned 325 shares (80% of the total). Wilson was the sole managing officer of the corporation both during the testator’s lifetime and thereafter, until the corporation was dissolved in December of 1974. The estate’s interest in the corporate assets at the time of the testator’s death was valued at approximately $112,000. Upon liquidation of the corporation four years later, the estate’s interest had diminished to approximately $62,000. Plaintiff seeks to have either the executor or Wilson held liable for the diminution in value.

The trial court expressly found that there was no evidence that anyone other than Wilson had the right to participate in the management of the corporation, that the executor had no right to liquidate any of the assets of the estate, and that the eventual liquidation of the corporation was “at the request, insistence and [with the] participation” of plaintiff and the other beneficiaries. Plaintiff does not contend here that these findings are contrary to the manifest weight of the evidence. Nonetheless, she persists in urging that liability be placed, alternatively, on the executor for failing to obtain and liquidate the corporate assets or on Wilson as an executor de son tort for liquidating its assets at a reduced value.

Generally, an executor has a duty to administer the assets of an estate in accord with his statutory duty and the terms of the will. The Probate Act authorizes, but does not require, the executor to liquidate assets and thereby reduce the personal estate to cash when such action is necessary for the proper administration of the estate. (Ill. Rev. Stat. 1969, ch. 3, par. 209.) The express intent of the testator’s will in this case, however, was to limit the authority of the executor and to repose any such authority in the trustee. The will, in providing that the trustee may distribute shares of the trust principal in kind or partly in kind and partly in money, further contemplated that assets be preserved either by retention or by reduction to cash. We agree with the trial court’s finding that except as necessary to pay debts, expenses and taxes, the executor was not authorized by the will to liquidate any assets of the estate, which would, of course, include the testator’s interest in Dawn Investment Company. Consequently, we find no basis for holding the executor liable for any loss which might have resulted from the failure to liquidate at a time when the market value of the corporate assets was higher.

Plaintiff’s alternative theory is that Wilson should be liable as an executor de son tort for the disadvantageous liquidation of the corporation. An executor de son tort is defined as “a person who without any authority inter-meddles with the estate of a decedent and does such acts as properly belong to the office of an executor or administrator, and thereby becomes a sort of quasi executor, although only for the purpose of being sued or made liable for the assets with which he has inter-meddled.” (Grace v. Seibert (1908), 235 Ill. 190, 192.) To hold Wilson liable as an executor de son tort, we would have to find that he intermeddled with the testator’s estate. We find nothing in the record to support such a conclusion. It is undisputed that Wilson was the only person to exercise managerial control over the corporation. He did so both before and after the testator’s death. His managerial duties involved the buying and selling of securities, which constituted the only assets of the corporation. Neither the testator nor the estate ever exercised any power, such as voting rights, which inhered in the ownership of corporate stock, until plaintiff demanded that the corporation be dissolved. Clearly, Wilson engineered the liquidating of the corporation’s stock portfolio, at the plaintiff’s request' and insistence, as the duly authorized agent of the corporation, and not as an intermeddler in the affairs of the estate. Under these circumstances, we would be unwarranted in finding Wilson to be an executor de son tort.

Plaintiff also contends that the executor and the trustee are both liable for waste and loss of income with respect to the estate’s farm property.

At the time of her death, the testator owned an 885-acre farm valued at $178,425. Only 320 acres were tillable. For six years prior to the testator’s death, the tillable land was sharecropped by two farmers. The testator received one-third of the income derived from the farming operation. Her share averaged about $8,000 annually.

Shortly after the testator’s death, the trustee instructed the executor to inform the tenant farmers that their annual lease would not be renewed. At the time, both the trustee and the plaintiff mistakenly thought that the trustee, individually, was the sole owner of the farm under the will. When the lease expired on September 1, 1971, the farmers terminated all farming operations. The land lay idle, except for 68 acres on which the trustee planted grass, until June 1973 when farming operations were resumed at the behest of the plaintiff and the other beneficiaries. Due to the late start in 1973, the owners’ one-third share of the income amounted to only $4,303. Plaintiff seeks reimbursement for the income lost in 1972, the diminution in income in 1973, and the cost of returning the land to full productivity.

The Probate Act provides that, except as otherwise provided in the will, the executor shall take possession of all the testator’s real estate during the period of administration, and, while retaining possession, shall collect the rents and earnings therefrom, and may make all reasonable expenditures necessary to preserve the real estate. (Ill. Rev. Stat. 1969, ch. 3, par. 219a.) The instant will explicitly states that the trustee, not the executor, shall take possession of all property, real and personal, and exercise the management powers attendant thereto. Not only was it the clear intent of the will to give complete dominion over the farm property to the trustee, but also the trustee was to be relieved of liability for depreciation or loss which resulted from her actions. Plaintiff suggests that the trustee should be held accountable nonetheless for waste and income lost because she constructively misappropriated the farm property. Plaintiff cites no relevant authority for this proposition and we find no merit to it. The trustee obtained no personal windfall out of terminating the farm operations. We agree with the trial and appellate courts that management of the farm was well within the broad discretionary authority endowed the trustee in the will.

Plaintiff’s attempt to transfer the liability for farm waste and income lost to the executor is equally without merit. Plaintiff’s novel theory is that if the trustee was responsible under the will for managing the farm property, then the executor should be liable as an executor de son tort for notifying the tenant farmers of the termination of their lease. The executor notified the tenant farmers only upon being instructed by the trustee to do so. In so doing, he was merely acting as the trustee’s agent and not as an unauthorized intermeddler in the management of the estate property.

The next issue presented is whether the evidence sufficiently established a valid inter vivos gift of jewelry from the testator to the trustee. We find that it did.

The trustee’s testimony relative to this issue was uncontradicted. The trustee received the jewelry while she was visiting the testator in the hospital shortly before the testator’s death. The testator’s housekeeper brought the jewelry to the hospital in a box which also contained three certificates of deposit. The value of the jewelry was later appraised at $12,450. The certificates of deposit were in denominations of $10,000, $10,000 and $20,000, and designated the trustee and each of one of the three beneficiaries as joint owners of each. The testator examined the contents of the box, delivered it to the trustee, and told her that the jewelry was a gift to her and that the beneficiaries were to receive the full value of the certificates. The trustee transferred the certificates to the beneficiaries in accordance with the testator’s wishes. Both the trustee and the plaintiff testified that the testator had frequently made gifts of jewelry to her daughter and grandchildren prior to the contested occasion.

Plaintiff asserts that such evidence did not clearly and convincingly establish the donative intent required of a valid inter vivos gift. She suggests that because the trustee’s testimony was uncorroborated, the trial court should have regarded it with suspicion. As both the trial and appellate courts emphasized, the trustee’s actions with regard to the certificates of deposit were persuasive indication of her veracity. The certificates designated the trustee as joint owner. Only she was aware of the testator’s desire to have the three beneficiaries receive the full share of their respective certificates. The certificates totaled more than three times the appraised value of the jewelry. Had the trustee’s testimony been a recent fabrication, she would hardly have voluntarily surrendered her right to half the value of the certificates after the testator’s death. The evidence was clear, convincing and unrefuted, and we agree with the trial court’s finding that the jewelry became the absolute property of the trustee by valid inter vivos gift.

Finally, we address the plaintiff’s all-encompassing contention that the estate should be recompensed for the diminution in value which resulted from long delays in the administration of the estate. We note that a substantial potential loss to the estate — $44,600 in tax penalties and interest — was averted through payment by a third party without any cost to the estate. Although the executor and the trustee may be faulted for the length of time that it took to distribute the trust assets to the ultimate beneficiaries, the mere passage of time was not responsible for the' reduction in value of the various assets which comprised the estate. As both the trial and appellate courts concluded with respect to the estate’s interest in the Dawn Investment Company, had the plaintiff and the other beneficiaries not demanded the dissolution of the corporation, the testator’s shares might well have been transferred in kind to the beneficiaries without any adverse financial consequences. Having determined that the executor’s actions did not cause the depletion in the estate assets, we find no basis for denying the executor the compensation granted him by the trial court. Plaintiff’s request for attorney’s fees for her good-faith effort to preserve the estate was not raised in either trial or appellate courts, and therefore cannot be presented here for the first time.

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 51598.
    CLIENT FOLLOW-UP COMPANY et al., Appellants, v. THOMAS C. HYNES, County Assessor, et al., Appellees.

      Opinion filed March 14, 1979.

    Rehearing denied May 30, 1979.

      Thomas E. Brannigan, of Flanagan, Bilton 8c Brannigan, of Chicago, for appellants Client Follow-Up Co. et al.

    Robert S. Cushman, Minard E. Hulse, Jr., and Thomas J. McNulty, of Keck, Mahin 8c Cate, of Chicago, for appellant Technical Exhibits Corp.
    Bernard Carey, State’s Attorney, of Chicago (Mark V. Chester, Assistant State’s Attorney, and Paul P. Biebel, Jr., Deputy State’s Attorney, of counsel), for appellees Thomas C. Hynes, Stanley T. Kusper, and Edward J. Rosewell.
    James P. Chapman and James D. Wascher, of Chapman & Royce, Ltd., of Chicago, for appellee Township High School District 205.
    William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel and Imelda R. Terrazino, Assistant Attorneys General, of Chicago, of counsel), for appellee Department of Local Government Affairs.
    William J. Harte, Ltd., of Chicago (William J. Harte and Kevin M. Forde, of counsel), for appellee Allan Masters, P.C.
   MR. JUSTICE RYAN

delivered the opinion of the court:

In this case we are confronted with the question of whether section 5(c) of article IX of the Illinois Constitution of 1970 prohibits the imposition of an ad valorem tax on personal property after January 1, 1979, and if so, is the further provision of section 5(c) concerning the enactment of a replacement tax operable. Section 5(c) provides:

“On or before January 1, 1979, the General Assembly by law shall abolish all ad valorem personal property taxes and concurrently therewith and thereafter shall replace all revenue lost by units of local government and school districts as a result of the abolition of ad valorem personal property taxes subsequent to January 2, 1971. Such revenue shall be replaced by imposing statewide taxes, other than ad valorem taxes on real estate, solely on those classes relieved of the burden of paying ad valorem personal property taxes because of the abolition of such taxes subsequent to January 2, 1971. If any taxes imposed for such replacement purposes are taxes on or measured by income, such replacement taxes shall not be considered for purposes of the limitations of one tax and the ratio of 8 to 5 set forth in Section 3(a) of this Article.”

In this case, Client Follow-Up Company, an Illinois corporation (Client), filed a class action in the circuit court of Cook County against Thomas C. Hynes, assessor of Cook County, Stanley T. Kusper, county clerk of Cook County, and Edward J. Rosewell, county treasurer and ex-officio county collector of Cook County. Count I of the complaint sought a declaration that the extension and collection of 1978 personal property taxes against the plaintiffs after January 1, 1979, is unconstitutional, and sought to enjoin their extension and collection. Count II sought similar relief as to 1979 personal property taxes. Thereafter, an order was entered allowing Allan Masters, P.C., a professional corporation (Masters), Township High School District 205 of Cook County, and the city of Chicago to intervene as parties defendant. Technical Exhibits Corporation, an Illinois corporation, was granted leave to intervene as a party plaintiff and as a representative of a class of corporations that are being assessed for a “capital stock tax” by the Department of Local Government Affairs (Department), which was made a party defendant.

Motions to dismiss were filed. The court granted the respective motions to dismiss, holding that the provisions of section 5(c) of article IX do not constitute an abolition of the personal property tax after January 1, 1979, but constitute a mandate to the legislature. Notices of appeal were filed and this court entered an order under Rule 302(b) (58 Ill. 2d R. 302(b)), transferring the appeal from the appellate court to this court.

The defendants, relying on this court’s holding in Elk Grove Engineering Co. v. Korzen (1973), 55 Ill. 2d 393, contend that the provisions of section 5(c) do not constitute a limitation on the legislative power to impose personal property taxes after January 1, 1979, but, instead, constitute only a mandate to the General Assembly to abolish the personal property tax. The defendants point out that this court has held that a constitutional mandate to the legislature cannot be enforced by the courts, citing Fiedler v. Eckfeldt (1929), 335 Ill. 11, Fergus v. Kinney (1928), 333 Ill. 437, Fergus v. Marks (1926), 321 Ill. 510, People ex rel. Woodyatt v. Thompson (1895), 155 Ill. 451, and G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 116 (1969). It is also contended that our holding in Elk Grove supports the conclusion that even after January 1, 1979, the adoption of a replacement tax is required before any ad valorem personal property tax can be abolished.

In Elk Grove, this court considered statutory enactments which had exempted certain classes of personal property from taxation. The General Assembly had not enacted replacement taxes as required by section 5(c). This court stated that the provisions of that section constituted a mandate to the legislature to abolish ad valorem taxes on personal property on or before January 1, 1979; that the provision was not self-executing; that the section required the General Assembly, when abolishing the tax, to concurrently therewith and thereafter enact a replacement tax, and that the provision of that section concerning the replacement tax was also not self-executing. This court held that the legislature could not abolish the ad valorem personal property tax on a class of taxpayers without enacting a replacement tax as required by section 5(c) of article IX. This court made no determination in Elk Grove as to whether the mandate of the Constitution to the legislature to abolish the tax continued after January 1, 1979, or whether after that date action by the General Assembly would be necessary to abolish the tax. The same is true of our holding in American National Bank & Trust Co. v. Kusper (1977), 69 Ill. 2d 374.

Since the issues now before this court were not considered in Elk Grove or American National Bank, the decisions in those cases are not controlling. We must, therefore, now construe the effect of the provisions of section 5(c) of article IX as they apply to ad valorem taxes levied on personal property after January 1, 1979.

Under traditional constitutional theory, the basic sovereign power of the State resides in the legislature. Therefore, there is no need to grant power to the legislature. All that needs to be done is to pass such limitations as are desired on the legislature’s otherwise unlimited power. (G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 111 (1969).) Thus, limitations written into the Constitution are restrictions on legislative power and are enforceable by the courts. On the other hand, constitutional directives to the legislature are considered as mandates or commands to the legislature to act, and it is generally held that the courts are powerless to enforce them. (Kamin, Constitutional Abolition of Ad Valorem Personal Property Taxes: A Looking-Glass Book, 60 Ill. Bar J. 432 (1972).) Thus, the issue before us is whether section 5(c) of article IX constitutes a limitation on the legislature’s authority to tax after January 1, 1979, or whether the continuing mandate to abolish this tax, which Elk Grove determined to exist before January 1, 1979, continues to be a mandate to the legislature after that date.

In construing the meaning of a constitutional provision, it is appropriate and helpful to examine it in light of the history and condition of the times, and the particular problem which the convention sought to address by incorporating in the document the questioned provision. (Wolfson v. Avery (1955), 6 Ill. 2d 78, 88-93.) When the 1970 Illinois constitutional convention convened, there was strong sentiment in this State to abolish personal property taxes by valuation. (Kamin, Constitutional Abolition of Ad Valorem Personal Property Taxes: A Looking-Glass Book, 60 Ill. Bar J. 432, 435 (1972).) Both the report of the Committee on Revenue and Finance, and the report of the dissenters on that committee, recognized the unfairness of the ad valorem personal property tax and the inability to apply it evenly. (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2129-42, hereafter referred to as Proceedings.) In fact, a publication entitled “Report of Governor’s Revenue Study Committee, 1968-69,” incorporated in the report of the majority of the Revenue and Finance Committee, referred to the personal property tax in Illinois as a “scandal.” (7 Proceedings 2133.) As discredited as the ad valorem personal property tax may have been, it was recognized by the committee that this tax provided a substantial amount of needed revenue for the local taxing bodies, which would be seriously hampered in their operation by the outright abolition of the tax. 7 Proceedings 2131.

The constitutional convention was also aware that the 1969 General Assembly had enacted Senate Joint Resolution No. 30 (1969), which proposed an amendment to the 1870 Constitution which would exempt personal property “as to individuals” from taxation. This proposed amendment was to be submitted to the voters at an election on November 3, 1970. The proposals adopted by the Constitutional Convention would be submitted to the voters about a month later at a special election on December 15, 1970. It was anticipated by the convention that the voters would approve Senate Joint Resolution No. 30 on November 3, 1970, and that at the time of the referendum on the proposals adopted by the constitutional convention, ad valorem taxes on personal property owned by individuals would have been abolished.

Against this background of events, the Committee on Revenue and Finance presented its proposal to the convention, the language of which, with only minor changes, ultimately became section 5(a) of article IX of the 1970 Constitution. The committee did not incorporate in its proposal any of the provisions now found in sections 5(b) or 5(c) of article IX. The provisions of these two subsections were adapted from the report of those members of the Committee on Revenue and Finance who dissented from the proposal submitted by the committee.

The explanation to the convention which accompanied the proposal of the committee stated that the approval of its proposal concerning personal property taxes would permit the legislature to nullify the results of the referendum on Senate Joint Resolution No. 30, and to enact legislation providing property tax relief it deemed advisable. 7 Proceedings 2137.

The dissenters from this proposal submitted their version of a proposed personal property tax provision for the Constitution. It provided:

“Any ad valorem personal property tax abolished or not imposed on the date this article takes effect shall not be reinstated or imposed thereafter. On January 1, 1979, the General Assembly shall abolish all ad valorem personal property taxes not previously abolished, and shall replace revenues lost to local governmental units as a result of such abolition by levying or authorizing the levy of taxes other than on an ad valorem basis.” (7 Proceedings 2139.)

The explanation for the proposal of the dissenters stated that the proposed constitution must take note of the effect of the voters’ action on Senate Joint Resolution No. 30, and pointed out that if it were to appear to the voters that the new constitution reinstated a tax that they had voted out of existence on November 3, 1970, the entire revenue article would be in jeopardy. The explanation further stated that the first sentence of the proposal was designed to remove any such doubt. The. explanation further stated that the last sentence of the proposal directed a 9-year phaseout of the personal property tax to avoid disruption of local government finances and required the legislature to provide replacement revenue. 7 Proceedings 2139.

As noted above, the provision of the proposal of the committee became section 5(a) of article IX. The provision of the first sentence of the dissenters’ proposal became section 5(b) of article IX, and the provision of the last sentence of the dissenters’ proposal was incorporated in section 5(c) of article IX, with which we are concerned in this case. The history of the development of these sections in the constitutional convention is set out in Elk Grove.

There can be no doubt that the dissenters, by their proposal, were attempting to abolish the ad valorem personal property tax. In the explanation of their proposal the dissenters stated:

“The ad valorem personal property tax is the only tax we place beyond the reach of the General Assembly ***.” (Emphasis added.) (7 Proceedings 2140.)

Delegate Meek, one of the dissenters, filed an additional explanation in which he stated:

“There are those who say that this provision usurps the prerogative of the state legislature, that it is a legislative rather than a constitutional issue. This is true, but there is no hope that the General Assembly will ever abolish this tax.” (7 Proceedings 2141.)

He then concluded:

“It is up to this Constitutional Convention to admit that the General Assembly has made no real effort to eliminate the system, to mandate the General Assembly to find new means of raising revenue, and to blot out for present and future generations a tax which is the very essence of inequity and corruption in Illinois.” (7 Proceedings 2141.)

Considering the provision of section 5(c) of article IX in light of the history and conditions of the times, and considering the end sought to be accomplished by those dissenters who submitted to the convention the proposals that were ultimately incorporated in section 5(c), it is apparent that the end sought to be accomplished, at least by those who made the proposal, was the abolition of the ad valorem personal property tax.

The intent to be derived from the debates on the floor of the convention as to whether section 5(c) of article IX constitutes a limitation or a mandate after January 1, 1979, as to abolishing the tax is less clear. The report of the Committee on Style, Drafting and Submission, in attempting to incorporate what it thought was the sense of the convention as expressed in the debates, rephrased the dissenters’ proposals to state in the first sentence: “No ad valorem tax on personal property shall be levied after December 31, 1978.” (7 Proceedings 2235.) This revision was a clear prohibition or limitation and not a mandate to the legislature. When this revised provision was debated, Delegate Cooper objected to the change in language, pointing out that he did not understand the original proposal as abolishing the tax. Delegate Mullen also objected but primarily directed her objection to the suddenness of the abolition, pointing out that the revision would not provide for a phasing out of the tax. She also stated, however, that she agreed with Delegate Cooper, but in answer to a question by Delegate Leahy, stated:

“We hope that the General Assembly will take steps in the next eight or nine years to get rid of some of the elements of personal property taxes, but if they don’t or what ones are left we want to be abolished.” (Emphasis added.) (5 Proceedings 3761.)

Delegate Cooper stated that if the General Assembly did not act, he understood the tax would remain in effect. Delegate Mullen then again stated that she “would think the General Assembly should take *** action.” She later stated, however:

“I intended it to be chopped off, but these are local government taxes, and it seems to me somewhere the General Assembly would have to say something.” (5 Proceedings 3761.)

No vote was taken to determine the sentiment of the convention, and the chairman of the Style, Drafting and Submission Committee suggested that the original language be reinstated. When this section was presented by that committee on third reading, the chairman raised the question of whether the first sentence of section 5(c) of article IX automatically abolished the personal property tax subsequent to January 1, 1979, and, if the personal property tax is not abolished by January 1, 1979, whether the replacement requirement is valid thereafter. (5 Proceedings 4255.) These two questions were not addressed or responded to by the convention.

When the meaning of provisions of the Constitution are in doubt, it is appropriate to consult the debates of the delegates to the constitutional convention to ascertain the meaning which they intended to give to those provisions. (Wolfson v. Avery (1955), 6 Ill. 2d 78, 88; People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520.) In our case the debates reflect that a few of the delegates understood the doubtful language to constitute a mandate to the General Assembly. Others, although in doubt as to the meaning of the provisions, thought the legislature should “say something.” However, less than 10 out of the 116 delegates expressed themselves in debate concerning the meaning of the language used in section 5(c) of article IX. When the matter was debated on the question of the language incorporated by the Committee on Style, Drafting and Submission on second reading, no vote was taken which would have revealed the sense of the convention. As against this, the six members of the Committee on Revenue and Finance who dissented from the report of that committee, and who proposed the provision which was adopted as an amendment to the report of that committee and which was later incorporated in section 5(c) of article IX, clearly indicated that it was their intention to abolish the ad valorem tax on personal property. The Committee on Style, Drafting and Submission thought it had incorporated the sentiment of the delegates when it drafted the version objected to on second reading by Delegate Cooper, which version contained a specific prohibition on the tax after January 1, 1979. It is possible to lift from the constitutional debates on almost any provision statements by a delegate or a few delegates which will support a particular proposition; however, such a discussion by a few does not establish the intent or understanding of the convention. The debates on the issue with which we are now concerned are inconclusive insofar as disclosing any understanding by the delegates as to the meaning of section 5(c) of article IX. It has been suggested that this was possibly intentional. Delegate Whalen, who was chairman of the Committee on Style, Drafting and Submission, stated subsequent to the adoption of the 1970 Constitution:

“Anticipation of judicial review provided the delegates with the opportunity to draft intentionally ambiguous provisions for inclusion in the constitution. The delegates envisioned that these ambiguities would be ultimately resolved by the courts. In some cases delegates even expected a specific interpretation by the courts which was politically impossible to obtain in the Constitutional Convention for want of majority agreement on the substantive issue.
For example, the convention was closely divided on the question of whether the ad volorem personal property tax should be abolished by the constitution. The proponents of abolition introduced a successful amendment which stated: ‘On or before January 1, 1979, the General Assembly by law shall abolish all ad valorem personal property taxes. ***’
The intent of some of the proponents was clear. The ad valorem personal property tax would be unconstitutional and therefore uncollectable after 1979 no matter what the General Assembly did. The opponents of abolition, on the other hand, contended that the amendment was simply a mandate to the General Assembly and that without legislative action the ad valorem personal property tax could continue to be imposed. Rather than face the issue squarely and provide any definite language as to whether or not the tax would be abolished, the convention approved an ambiguous amendment which will probably be interpreted in the courts. Thus, the courts, not the convention, must resolve the political question.” Whalen & Wolff, Constitutional Law: The Prudence of Judicial Restraint Under the New Illinois Constitution, 22 De Paul L. Rev. 63, 65-66 (1972).

Although the constitutional debates may often be helpful in understanding the meaning of doubtful constitutional provisions, the true inquiry concerns the understanding of its provisions by the voters who, by their vote, have given life to the product of the convention. People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 527; Wolfson v. Avery (1955), 6 Ill. 2d 78, 88; Burke v. Snively (1904), 208 Ill. 328, 344.

In 1969 the General Assembly adopted Public Act 76 — 40, calling the constitutional convention which drafted the 1970 Constitution. Section 13 of that same act required that the constitutional revision adopted by the convention be submitted to the electors for ratification or rejection. Section 13- also provided:

“Each proposed revision, alteration, or amendment, together with appropriate information explaining each revision, alteration, or amendment, shall be published in full and disseminated to the electors ***.” (1 Proceedings 835, 839.)

A special committee, which came to be known as the “Section 13 Committee,” was appointed by the president of the convention to perform the requirements of section 13 of the enabling act (Pub. Act 76 — 40), including presenting information to the voters concerning the proposed revision. The committee was composed of the officers of the convention and 10 delegates. (1 Proceedings 235.) On August 30, 1970, the chairman of the Section 13 Committee filed that committee’s report, which contained an explanation for each section of the proposed constitution. The report was distributed on that date to each delegate. (5 Proceedings 4440.) It does not appear that the report was debated or voted on by the delegates prior to the adjournment of the convention on September 3, 1970. However, on September 2, 1970, the Section 13 Committee presented a resolution to the convention which would authorize the committee to make stylistic and grammatical changes in the explanation which had been circulated to the delegates, and where substantive changes might be involved to make the same, with the majority vote of the committee and the majority of the officers approving. The resolution was adopted on September 2. (5 Proceedings 4660.) The explanation of certain parts of section 5(c) of article IX ultimately given to the voters contained some stylistic changes from the language in the report of the committee circulated to the delegates. However, as to that part of section 5(c) of article IX with which we are now concerned, the explanation given to the voters was the same as that contained in the committee’s report which had been given to the delegates on August 30. Both documents stated: “It [section 5(c) of article IX] prohibits taxing any personal property by its value after January 1, 1979." (Emphasis added.) 7 Proceedings 2737. There was also a committee on the “Address to the People” which filed its report on September 2, 1970. (1 Proceedings 769; 5 Proceedings 4638.) It was understood that the traditional role of an “Address to the People” was to justify and explain proposed changes in the constitution. It was anticipated by this committee that the address would probably be published as an introduction to the published text of the constitution and the explanation that would be distributed to the people of Illinois. The report of this committee was debated on that date, and certain changes were made; however, no changes or debate concerned the constitutional provision now under consideration. (5 Proceedings 4638-60.) The report of the committee was adopted and ultimately was included as a part of the official publication which was disseminated to the public, which included the address, a sample ballot, and the proposed constitution with the explanations as to each section. The address to the People, in discussing the personal property tax, stated that ad valorem taxes on personal property of individuals are made dependent on the result of the referendum on November 3, 1970. “Any remaining personal property tax is to be abolished by 1979 ***.” (7 Proceedings 2676.) It thus appears that through these two official publications the voters were informed that if they adopted the new constitution, after January 1979 there would be no ad valorem tax on personal property.

In addition to the official information disseminated to the voters, other unofficial information to the same effect was given wide circulation. Although the unofficial publications lack any official status in that they did not emanate from the convention or authorized personnel, they nonetheless constitute a- part of the total body of information available to the public, by which the voters were informed as to the meaning of the various sections of the constitution.. As such, these unofficial publications are worthy of consideration in ascertaining the understanding of the voters as to the meaning of this doubtful section when they cast their ballots in favor of the revised constitution. In Wolfson v. Avery (1955), 6 Ill. 2d 78, 89-92, this court, in attempting to ascertain the understanding of the voters concerning a provision in the 1870 Constitution, considered the interpretations which had been given to that section by several newspapers throughout the State prior to the referendum. In this regard, it is worthy to note that on December 10, 1970 (the referendum on the 1970 Constitution was held December 15, 1970), the Chicago Tribune quoted Governor Oglivie of this State as saying:

“The Revenue Article also would ‘deal the final death blow to the last vestiges of the personal property tax *** > >>

On Sunday, December 13, 1970, the Chicago Tribune devoted substantial space to discussing and explaining the various sections of the proposed constitution. John Elmer, a correspondent for that paper who covered the convention, stated in an article:

“Other major revenue sections include: *** a bar on personal property tax on corporations after 1978 ***.”

That same issue of the Chicago Tribune contained an article by Samuel Witwer, who had been president of the constitutional convention. He spoke in favor of the adoption of the new constitution, and his article included the following:

“The new constitution will end all *** personal property taxation by the end of 1979 [sic].”

In addition to this statement by Witwer, John Kams, who had served as chairman of the Committee on Revenue and Finance at the convention, in summarizing the provisions of the revenue article of the new constitution, stated in another publication:

“Only local governments tax real or personal property, but the Convention revamped the property tax system. It abolished the ad valorem, personal property tax as of January 1, 1979.” (Emphasis added.) 32 Weekly Illinois Constitutional Convention Summary 14 (for week ending September 3, 1970).

Thus, we have Witwer, who was president of the constitutional convention, and Karns, who was chairman of the Committee on Revenue and Finance, both speaking publicly before the referendum stating their views to be that the new constitution would prohibit ad valorem taxes on personal property after January 1, 1979. Both of these gentlemen played substantial roles in framing this constitution. Delegate Kams, as chairman of the Committee on Revenue and Finance, would be especially knowledgeable concerning the revenue article. It was very much within their power to express to the voters reliable opinions as to the intent of those who framed the constitution. Because of their positions, their expressions as to the meaning of this section would carry great weight with the voters and should be helpful to this court. (See Wolfson v. Avery (1955), 6 Ill 2d 78, 89; Cohens v. Virginia (1821), 19 U.S. (6 Wheat.) 264, 416-18, 5 L. Ed. 257, 294.) We find that the address to the People, the official explanation, the statements contained in the Chicago Tribune, and the statements of Delegates Witwer and Kams all reflect that the logical understanding of the voters as to the meaning of section 5(c) of article IX would be that after January 1, 1979, no legislative action was required to abolish ad valorem taxes on personal property; that after that date the Constitution prohibited such taxes. Thus, we hold that the language of section 5(c) of article IX does not constitute a continuing mandate to the legislature to abolish ad valorem taxes on personal property after January 1, 1979, which would be unenforceable by the courts. We hold, instead, that the language of section 5(c) of article IX constitutes a limitation on the power to tax after that date.

We hold, however, that this interpretation does not affect 1978 personal property taxes collectable in 1979. The plaintiffs cite several cases from other jurisdictions and contend that since the mechanics of extending and collecting personal property taxes for 1978 had not been completed, and the tax was not due as of January 1, 1979, the tax cannot now be collected. Each jurisdiction has its own statutory taxation scheme, schedules and practices. In interpreting our own scheme of taxation it is not necessary that we analyze in detail the schemes and practices in other jurisdictions and abide by the constructions placed upon those statutory schemes by the courts in our sister States. In Illinois, the owner of personal property on April 1 is liable for taxes on that property for that year. (Ill. Rev. Stat. 1977, ch. 120, par. 508a.) The statutory assessment procedure calls for personal property to be listed for assessment purposes between April 1 and June 1 of each year. (Ill. Rev. Stat. 1977, ch. 120, pars. 528, 529.) During the calendar year various taxing bodies adopt their budgets and levy ordinances and file them with the county clerks. Our scheme of taxation also contemplates that the coUectors’ books be delivered to the coHectors on or before December 31 of the taxable year and that the collectors shaU then proceed to collect the taxes. (Ill. Rev. Stat. 1977, ch. 120, pars. 653, 671.) Delays in the extension of taxes, however, often require this time to be extended. The personal property tax becomes a lien upon the personal property of the person assessed from and after the date that the tax books are received by the collector. (Ill. Rev. Stat. 1977, ch. 120, par. 698.) The word “year” when used in the Revenue Act of 1939, with references to taxes for a year, means a calendar year, beginning with the first day of January. (Ill. Rev. Stat. 1977, ch. 120, par. 482(22).) Also, it is provided in another statute that “taxable year” means the calendar year during which ad valorem property taxes payable in the next succeeding year were levied. (Ill. Rev. Stat. 1977, ch. 67½, par. 403.13.) Under our scheme of taxation the taxes for the year 1978 had accrued prior to January 1, 1979.

The constitutional debates never directly discussed whether the abolition of the tax would retroactively prohibit the collection of the tax for the previous year. However, the explanation to the voters and other material previously discussed can reasonably be interpreted as stating that it is the personal property tax for the year 1979 and subsequent years that is prohibited. At the time the 1978 tax liability accrued, at the time that liability attached for the tax, and at the time the local governmental bodies adopted their tax-levy ordinances, there was no prohibition of ad valorem personal property taxes other than as to individuals. We therefore conclude that the 1978 personal property tax payable in 1979 is collectable.

Interven or Masters contends that after January 1, 1979, the replacement requirement of section 5(c) of article IX is no longer effective. We do not agree. The delegates to the convention expressed great concern about the effect of the loss of revenue to units of local government through the abolition of the personal property tax and felt that the legislature must enact replacement legislation (Elk Grove Engineering Co. v. Korzen (1973), 55 Ill. 2d 393, 404). In Elk Grove, this court noted (55 Ill. 2d 393, 402-03) that the chairman of the Committee on Style, Drafting and Submission raised the question of whether the replacement requirement of section 5(c) of article IX would apply if the General Assembly did not act to abolish the tax by January 1979. There was no response to his question. There appears to be nothing in the constitutional debates, the explanation to the voters, the address to the People, or the language of section 5(c) itself that requires the adoption of Masters’ contention. When this section of the constitution was being debated, it was generally considered by the delegates that ad valorem personal property tax as to individuals would be abolished by the referendum that would be held on November 30, 1970, and that the net effect of section 5(c) of article IX would be the abolition of ad valorem taxes on personal property owned primarily by corporations. The delegates were concerned that this class of taxpayers would thus be relieved of the tax burden which the General Assembly could then shift to some other class of taxpayers. It was stated that this section would be a continuing responsibility of the General Assembly to enact replacement legislation. To make this meaning clear during the debates, an amendment was adopted which inserted the words “and thereafter” so that the language would read:

“and shall concurrently therewith and thereafter replace all revenue lost ***.” (5 Proceedings 3825-39.)

If Masters’ contention were adopted and the replacement mandate of section 5(c) of article IX were rendered ineffective, the General Assembly would be able to accomplish the very end that the delegates did not want; that is, the shifting of the burden of the abolished tax to another class of taxpayers. Not only is that end contrary to the expressed intent of the delegates, but it is also contrary to the language of the address to the People, which stated:

“Any remaining personal property tax is to be abolished by 1979, and the loss of revenue to local governments is to be replaced by a statewide tax, imposed on the class or classes relieved ***.” (7 Proceedings 2676.)

Likewise, the explanation to the voters indicated that when the tax is abolished, the General Assembly must replace the revenue lost by local governments by placing a statewide tax on those who were relieved of the personal property tax. (7 Proceedings 2737.) We therefore hold that the mandate to the General Assembly to enact a replacement tax under section 5(c) of article IX continues after the tax was abolished on January 1, 1979. Although, as noted earlier in this opinion, such a mandate is not generally judicially enforceable, it does, nonetheless, constitute a constitutional command to the General Assembly to act, and the members of that body have by their oath sworn to support the Constitution of the State of Illinois (Ill. Const. 1970, art. XIII, sec. 3).

We therefore conclude that section 5(c) of article IX prohibits the levy, extension or collection of ad valorem, personal property taxes for the calendar year 1979 and thereafter. We hold that the ad valorem personal property taxes for the year 1978, collectable in 1979, have not been abolished and are collectable. We hold that the provision of section 5(c) of article IX concerning the enactment by the General Assembly of a replacement tax constitutes a continuing mandate to that body to comply with the requirements of that section. Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded to that court for further proceedings.

Reversed and remanded.


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    (No. 50435.
    MOTOR WHEEL CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Rudolpho C. Escatel, Appellee.)

      Opinion filed Jan. 26, 1979.

    Rehearing denied March 30, 1979.

      RYAN, J., too no part.
    Dunn & Hayes, of Morris, for appellant.
    Kevin Kelly, of La Salle (Sidney Z. Karasik, of Chicago, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of La Salle County which confirmed the Industrial Commission’s denial of the petition of the respondent, Motor Wheel Corporation. The petition was filed under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(h)). The claimant, Rudolpho C. Escatel, had filed an application for adjustment of claim on September 1, 1970, for injuries he received to his eyes on August 15, 1968, and on July 16, 1970, in the course of his employment by Motor Wheel. Prior to his injury, claimant did not wear glasses and had uncorrected vision of 20/25 in both eyes; subsequent to the injury, he had uncorrected vision of 20/200. (Claimant testified the later injury occurred on July 15,1970, but his application and the Commission’s finding place the date of injury on July 16, 1970.) The arbitrator found the claimant sustained “permanent and complete loss of vision of *** [each] eye to the extent of 100%” under paragraph 18 of section 8(e) of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)(18)). On March 27, 1972, the Commission affirmed. Motor Wheel did not appeal. Within the required 30 months of the Commission’s affirmance (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(h)), on August 15, 1974, Motor Wheel filed its section 19(h) petition with the Commission, alleging a diminution of claimant’s disability.

The first issue is whether an award for permanent and complete loss of vision of both eyes pursuant to section 8(e)(18) of the Act may be reviewed under section 19(h) of the Act. Claimant argues that the 100% loss of vision under section 8(e)(18) is a “presumptive complete disability” which precludes review, under section 19(h), for diminution of the injury absent a material change. In support of this, claimant cites National Lock Co. v. Industrial Com. (1975), 62 Ill. 2d 51, and Scandroli Construction Co. v. Industrial Com. (1973), 54 Ill. 2d 395.

We disagree. Section 19(h) of the Act clearly provides:

“However, as to accidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made as a result of such accident, such agreement or award may at any time within 30 months after such agreement or award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.
On such review compensation payments may be re-established, increased, diminished or ended. ***” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(h).)

The plain language indicates that any award may be subject to a section 19(h) proceeding, initiated by either the employee or the employer. In Summit Coal & Mining Co. v. Industrial Com. (1923), 308 Ill. 121, the facts were similar to those present here: a claimant was found to have suffered the loss of both eyes “which, under the provisions of section 8 of the Workmen’s Compensation act, constituted total and permanent disability” (308 Ill. 121, 122); the employer filed a section 19(h) petition which was denied by the Commission; and the circuit court confirmed. This court reversed because the evidence indicated the claimant was not totally blind at the time of the hearing on the petition, whereas at the time the award was made, which was a final determination of all questions in dispute at the time of that decision, the claimant was found to be completely blind. This court reasoned that because the injury had diminished, the Commission should have determined the extent of the diminution instead of denying.the petition outright.

The cases of Scandroli Construction Co. (54 Ill. 2d 395) and National Lock Co. (62 Ill. 2d 51), cited by the claimant, are not helpful. We agree with the circuit court that those cases, which were before this court on direct appeal rather than on a section 19(h) petition, were concerned with the attempt by the employer to establish a diminution of an injury, resulting in complete disability under section 8(e)(18), on the basis of a claimant’s return to work. Section 8(e)(18) of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)(18)) clearly establishes a distinct category of complete disability for the “specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof” — a category which is separate and apart from the complete disability under section 8(f). Where a claimant returns to work and has not suffered the loss of two members (under section 8(e)(18)), section 8(f) allows for the cessation of payments or modification of an award which had been based on complete disability (pursuant to section 8(f)). As held by Scandroli Construction Co. and National Lock Co., a claimant’s return to work does not negate a finding of complete disability under section 8(e)(18), as it would a finding of complete disability under section 8(f). But those cases are limited to the situation where a claimant has returned to work after an award was made for complete disability under section 8(e)(18). They in no way prevent recourse by an employer to section 19(h) so long as a claimant’s return to work is not the basis for establishing a claimant’s decreased disability. Hence, a petition under section 19(h) could be properly filed by Motor Wheel here.

A petition for review of an award under section 19(h) is different from appellate review of the award. “A petition for review of an award under section 19(h) *** is not a proceeding which will allow the reversal of a decision of the Industrial Commission or of a judgment of the circuit court. *** The original award or settlement is not to be brought in question, for it must be considered final”; it is res judicata. (Zimmerly Construction Co. v. Industrial Com. (1972), 50 Ill. 2d 342, 344-45.) In essence, then, the question in a section 19(h) proceeding is whether the employee’s disability has, subsequent to the award, recurred, increased, diminished or ended. As this court noted in Zimmerly, the “change in condition must be a material one” (50 Ill. 2d 342, 345-46); and “it is the function of the Industrial Commission to resolve factual questions and *** a court will not set aside a finding of the Commission unless it is contrary to the manifest weight of the evidence” (50 Ill. 2d 342, 346).

This is the second issue of the instant case: whether the commission’s denial of Motor Wheel’s petition was against the manifest weight of the evidence. Motor Wheel argues the denial was contrary to the evidence because the Commission should have considered a change in the claimant’s condition, since the award was made, on the basis of improvement by the use of corrective lenses. It urges us to adopt a standard for the determination of loss of vision based on the degree of improvement, after an eye injury, due to correction by lenses; and it cites cases from other jurisdictions in support of that contention. We decline to do so.

Our reasons are firmly and clearly set out in Lambert v. Industrial Com. (1952), 411 Ill. 593, 604, 606-07. (Accord, Walker v. Industrial Com. (1978), 72 Ill. 2d 408, 412-13.) In Lambert this court noted that there was a sharp conflict, which the parties agree still exists, among jurisdictions over which of basically two rules should be utilized to determine the extent of the damage to an injured eye. One rule would allow only “naked vision” as the measure of the loss of the eye; that is, the extent of the damage would be determined without recourse to corrective lenses. The other rule would require the loss of the eye to be determined by the “difference” between the eyesight at injury and as corrected by use of lenses. (Lambert v. Industrial Com. (1952), 411 Ill. 593, 603-04.) The Act is silent as to whether corrected or uncorrected vision should be the determinant of the extent of the loss of the eye. (Lambert v. Industrial Com. (1952), 411 Ill. 593, 606; Walker v. Industrial Com. (1978), 72 Ill. 2d 408, 412.) This court, however, rightly declined to restrict the determination of the extent of eye loss to either rule:

“The real difficulty, and one of the causes of the lack of harmony in the authorities, lies in the fact that neither rule is adequate to cover all cases. If naked vision, alone, is considered, the worker with corrected vision is not adequately protected, and if corrected vision, alone, is considered, the worker with uncorrected vision is not fully protected. In the first instance, the loss of an eye ‘industrially blind’ with naked vision, but normal with correction, would not be compensable; in the second, an injury rendering a normal eye industrially blind would not be compensable if it could be corrected to normal by the use of glasses.” Lambert v. Industrial Com. (1952), 411 Ill. 593, 604.

Accord, Walker v. Industrial Com. (1978), 72 Ill. 2d 408, 412-14.

The Act requires that industry take the employee as he is, not as he should be, at the time of employment and injury, and compensate the victim for his or her loss in industrial value. When that industrial value is destroyed by the loss of “normal use” of the eyes, “permanent loss” has been sustained even if artificial means allow for some restoration of use. (Heaps v. Industrial Com. (1922), 303 Ill. 443, 447. Accord, C.S.T. Erection Co. v. Industrial Com. (1975), 61 Ill. 2d 251, 257.) This policy consideration is articulated fully in Lambert:

“The theory behind compensation acts is that industry rather than society should care for its wrecked manpower. That care, whether it be in the form of a specific allowance for specified injuries, or whether it be based on reduced earning power, is to remunerate the injured party for his financial loss through the reduction of his industrial value. ***
In the instant case, the petitioner had normal vision with glasses prior to the injury. The employer had employed him with his corrected vision and he was performing his work satisfactorily. The petitioner’s corrected vision was just as valuable to both petitioner and his employer as was the uncorrected vision of his co-employee. The destruction of petitioner’s corrected vision would be the same industrial loss to petitioner and the same loss to industry as the vision of any other employee. The cost to the employer to reimburse petitioner for his loss is no greater than in the case of any other employee who is doing the same work and receiving the same pay. The vision which petitioner had prior to the accident was the vision he depended upon for his industrial value and ability. That was the vision he was selling his employer and the employer was receiving benefits from that vision equal to any other employee in the same work. The injury which petitioner sustained to that vision, (and the reduction in its industrial value,) was petitioner’s actual damages by reason of the accident.” (411 Ill. 593, 606-07.)

We think Motor Wheel incorrectly contends that adoption of the “corrected vision” standard would be consistent with Lambert. Lambert stands for the proposition that permanent disability, due to injury of the eyes, is to be determined by actual injury to the victim’s eyes as he “used” them at the time of injury. If he used no corrective lenses, then the difference between uncorrected vision at the time of injury and thereafter is the measure of the damage; if he used corrective lenses, then the difference between corrected vision at the time of injury and thereafter is the measure of damage. Cf. Walker v. Industrial Com. (1978), 72 Ill. 2d 408.

We conclude that Motor Wheel failed to meet its burden of proving a material change in claimant’s condition; so its petition was correctly denied. There was conflicting medical evidence presented, by way of exhibits from both parties (letters from various doctors), at the hearing on the petition, and it was properly resolved by the Commission. (National Lock Co. v. Industrial Com. (1975), 62 Ill. 2d 51, 54.) Also, the claimant testified at the hearing. We will not substitute our judgment, even though we might have drawn other inferences, where the decision of the Commission is not contrary to the manifest weight of the evidence. (C.S.T. Erection Co. v. Industrial Com. (1975), 61 Ill. 2d 251, 257. See Santiago v. Industrial Com. (1977), 66 Ill. 2d 356, 359.) Our review of the record shows it was not.

We affirm the judgment of the circuit court.

Judgment affirmed.

MR. JUSTICE RYAN took no part in the consideration or decision of this case.


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    (No. 50780.
    STATE TREASURER OF ILLINOIS, Appellant, v. THE INDUSTRIAL COMMISSION (Jacqueline Young et al., Appellees.)

      Opinion filed April 3, 1979.

      William J. Scott, Attorney General, of Springfield (Dennis R. Greene, Assistant Attorney General, of Chicago, of counsel), for appellant.
    J. Michael Madda, of Chicago (John E. Flavin and Charles Wolff, of counsel), for appellee Jacqueline Young.
    Burgeson, Laughlin, Cunningham & Smith, of Chicago (Richard W. Baum, of counsel), for appellees Ampex Corporation and Employers Insurance of Wausau.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This is an appeal under our Rule 302(a)(2) (58 Ill. 2d R. 302(a)(2)) from a Cook County circuit court confirmance of an Industrial Commission award. The Commission found that the claimant had 100% loss of sight in. her left eye prior to February 1974, and subsequently suffered a 100% loss of sight in her right eye in a February 4, 1974, accident at the Ampex Corporation. Under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.), Mrs. Young wiU receive a lifetime pension, payable in part out of the Second Injury Fund. The State Treasurer of the State of Illinois, as custodian of the Second Injury Fund, has brought this appeal.

The primary issue posed is whether this award, allowing recovery from the Second Injury Fund, is against the manifest weight of the evidence.

On February 4, 1974, Jacqueline Young, an employee of Ampex Corporation, was injured when four or five boxes, weighing approximately 21 pounds each, fell eight feet and hit her. She was sent to the O’Hare Clinic, where she was examined and given medication to relieve headaches and dizziness. Mrs. Young’s eye problems began several weeks after the accident when she developed diplopia (double vision). Her personal doctor referred her to Dr. Irwin Menachof and Dr. Howard Tessler, eye specialists. Dr. Tessler, after consulting other doctors, recommended surgery in an attempt to correct the diplopia. In December 1974 and February 1976 surgery was performed. Both were unsuccessful, and Mrs. Young must wear an occluder over one eye in order to relieve the double vision. As a consequence, she has only the effective use of one eye.

In 1967, Mrs. Young had been involved in a serious automobile accident. She was comatose for seven weeks, but apparently fully recovered. In 1969, she underwent a complete physical examination as a prerequisite to her hiring by Ampex. Records of that examination indicate that her sight was 20/200 in each eye. That sight however was correctable to 20/20, and she suffered from no other occular disorder.

The arbitrator awarded Mrs. Young complete disability for 100% loss of the use of her left eye and 100% loss of the vision of her right eye. He found that the disability was the result of the February 4 accident. The Industrial Commission considered the evidence available to the arbitrator, the medical records of the 1967 automobile accident, and the 1969 preemployment physical examination. The Commission concluded that Mrs. Young had lost the sight of her left eye prior to the 1974 accident and had lost the sight of her right eye in the 1974 accident. As a consequence, Amp ex was liable under the statute for only the 100% loss of use of a single eye. The Second Injury Fund, under the Commission’s finding, must provide a lifetime pension to Mrs. Young because of the prior loss of sight of her left eye. Ill. Rev. Stat. 1973, ch. 48, par. 138.8(f).

Second Injury Fund liability could arise only if Mrs. Young suffered the loss of one eye prior to February 1974. The Workmen’s Compensation Act provides:

“If an employee who had previously incurred loss or the permanent and complete loss of use of one member, *** incurs permanent and complete disability through the loss or the permanent and complete loss of the use of another member, he shall receive, in addition to the compensation payable by the employer and after such payments have ceased, an amount from the Special Fund [now the Second Injury Fund] provided for in paragraph (f) of Section 7, which, together with the compensation payable from the employer in whose employ he was when the last accidental injury was incurred, will equal the amount payable for permanent and complete disability ***.” Ill. Rev. Stat. 1973, ch. 48, par. 138.8(f).

Recovery under the Second Injury Fund requires a finding that prior to the most recent industrial accident the claimant had suffered the complete loss of or loss of use of one member. That loss may have resulted in a prior award, or it may have occurred outside the Workmen’s Compensation Act, but it “must have been of a physical quality capable of supporting an award if the other elements of compensability were present.” (2 A. Larson, Workmen’s Compensation sec. 59.32, at 10—296 (1976).) The analysis of the first injury must meet the standards applicable to an industrial injury, and the “loss of use of the eye is a question of fact in each case and is not one to be determined by a mechanical measurement as to corrected vision or uncorrected vision.” (Walker v. Indus trial Com. (1978), 72 Ill. 2d 408, 413; see also Lambert v. Industrial Com. (1952), 411 Ill. 593.) A finding by the Commission “will not be set aside unless contrary to the manifest weight of the evidence ***.” C.S.T. Erection Co. v. Industrial Com. (1975), 61 Ill. 2d 251, 257; Walker v. Industrial Com. (1978), 72 Ill. 2d 408, 413; Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230.

Though the Commission may consider corrected or uncorrected vision in finding a disability, it cannot apply both standards simultaneously to the same claimant for the same alleged injury. Here, Mrs. Young’s visual acuity uncorrected was 20/200 in each eye prior to the February 4, 1974, accident. Whether that constituted “industrial blindness” was a question of fact for the Commission, but if Mrs. Young’s 20/200 uncorrected vision justified a finding of blindness in her left eye, then it also constituted blindness in her right eye. On the other hand, if she was fully sighted in her right eye, because of her corrected vision of 20/20, then she was fully sighted in her left eye. The Commission’s finding that Mrs. Young had suffered a 100% loss of the use of her left eye prior to 1974 and the implicit finding that she had suffered no diminution in the use of her right eye is clearly contrary to the manifest weight of the evidence in light of the identical vision in both of her eyes. Mrs. Young was sightless in both eyes or neither eye before the industrial accident, and, as a consequence, the award from the Second Injury Fund must be reversed.

The remaining finding of the Industrial Commission, that the February 4, 1974, accident caused the 100% loss of Mrs. Young’s right eye, is supported by this record. Despite surgery the claimant is stiU plagued by double vision. In order to relieve that double vision she is required to wear an occluder that will cut off the sight of one eye. Though she is able to work, she works with the sight of only one eye. The accident of February 4, 1974, clearly deprived her of the use of one eye. The finding and award for the loss of use of the right eye due to the claimant’s diplopia is supported by the record. Cf. C.S.T. Erection Co. v. Industrial Com. (1975), 61 Ill. 2d 251.

Mrs. Young contends that the only question before this court is whether the arbitrator or the Commission was correct. In either event, she contends she would be entitled to an award for permanent total disability. However, contrary to her contention, the State Treasurer does not argue only that Ampex should pay the total award for total permanent disability. In the circuit court, counsel for the State Treasurer argued:

“We would contend that she is not industrially blind in both eyes; that with the patch on the one eye, she has to wear that to correct the double vision, she, for all intents and purposes, is industrially blind in the one eye but not in the other. And we would conclude, your tionor, by stating that if she was not industrially blind before the accident and lost the vision in one eye, the the finding of the Commission should be reversed and the finding entered that she is now only blind in one eye.”

In this court the State Treasurer has made a similar argument and now requests that we either reinstate the decision of the arbitrator or remand the cause for a decision consistent with the facts. We conclude that the decision that Mrs. Young suffered 100% loss of the sight of her left eye prior to 1974 is contrary to the manifest weight of the evidence. We hold that the decision that Mrs. Young suffered 100% loss of the sight of her right eye as a result of the accident is not contrary to the manifest weight of the evidence and is affirmed. We remand the cause to the Industrial Commission for the purpose of entering an award in favor of Mrs. Young consistent with these holdings.

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