author: JUSTICE SIMON

text:
    (No. 53969.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JACK D. SIMMONS, Appellant.

      Opinion filed November 20, 1981.

    Rehearing denied January 29, 1982.

    MORAN, J., concurring in the judgment.

      Robert Agostinelli, Deputy Defender, and Verlin R. F. Meinz, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    No appearance for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The defendant, Jack Simmons, was committed to the Illinois Department of Corrections for several felonies. After a time in a high-security prison, he was transferred to the Peoria Community Correctional Center. On November 10, 1977, he was allowed six hours of independent day release to go shopping. An employee of the Correctional Center drove him to a local shopping center and left him, unaccompanied. Simmons was required to call in every two hours; and his brother was to drive him back to the Center. Simmons called once, but not the second time, and never returned to the Center. He was eventually arrested in Davenport, Iowa, prosecuted in the circuit court of Vermilion County for escape, under section 31—6 of the Criminal Code of 1961, as amended (Ill. Rev. Stat. 1977, ch. 38, par. 31—6), and sentenced to three years’ imprisonment, to commence at the end of the sentences he was already serving. The appellate court affirmed. 87 Ill. App. 3d 18.

The defendant contends that he could not properly be charged under section 31—6 of the Criminal Code of 1961, but only under section 3—6—4(a) of the Unified Code of Corrections, which provides:

“A committed person who escapes or attempts to escape from an institution or facility of the Adult Division [of the Department of Corrections] e#0 is guilty of a Class 2 felony. A committed person who fails to return from furlough or from work and day release is guilty of a Class 3 felony.” (Ill. Rev. Stat. 1977, ch. 38, par. 1003—6—4(a).)

Under that section, the defendant maintains, he was guilty only of a Class 3 felony. Instead, he was convicted of a Class 2 felony, under section 31—6, the escape provision of the Criminal Code of 1961, which provides:

“(a) A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution commits a Class 2 felony.” (Ill. Rev. Stat. 1977, ch. 38, par. 31—6(a).)

Under another paragraph of this section, a person in custody for a misdemeanor commits only a misdemeanor if he escapes. Ill. Rev. Stat. 1977, ch. 38, par. 31—6(b).

The defendant raises three arguments in support of his position that he was charged under the wrong statute: What he did was not an “escape,” but only a “failure to return”; the Correctional Center was not a “penal institution”; and the Unified Code of Corrections provides the specific and exclusive penalty for such conduct.

The Unified Code of Corrections defines “escape” as “intentional and unauthorized absence” of a committed person from the custody of the Department. (Ill. Rev. Stat. 1977, ch. 38, par. 1003—1—2(i).) Under that definition, the defendant’s conduct was an escape. The definition does not expressly apply outside the Unified Code of Corrections. However, the legislature has given the word a similarly broad meaning in other statutes. Section 13—44.3 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 13—44.3) (authorizing educational furloughs from the Department of Corrections) and section 55a(13) of the Civil Administrative Code of Illinois (Ill. Rev. Stat. 1977, ch. 127, par. 55a(13)) (authorizing furloughs of inmates for use in research) both provide that failure to return from furlough or violation of the territorial limits of the furlough shall be deemed an escape from the custody of the Department of Corrections and punished under the statute dealing with escape from the penitentiary (Ill. Rev. Stat. 1971, ch. 108, par. 121, now merged into section 3—6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003—6—4)). We see no reason why conduct that is considered an escape under the Unified Code of Corrections, the School Code, and a statute on the Department of Law Enforcement should not also be an escape for purposes of the Criminal Code of 1961.

A broad meaning for “escape” is consistent with the word’s standard legal usage. At common law, the crime of escape required no force, and could be committed, for example, with the connivance of the jailer; it consisted simply of an unlawful departure from custody, or the act of a prisoner in gaining liberty before being released in due course of law. (27 Am. Jur. 2d Escape, Prison Breaking, and Rescue § 1 (1966).) And what the defendant did is a criminal escape according to the great weight of authority in other States (Annot., 76 A.L.R.3d 658 (1977)), including those with statutes similar to section 31—6(a) (e.g., Days v. United States (D.C. 1979), 407 A.2d 702; Shifflett v. State (1968), 4 Md. App. 227, 242 A.2d 182; Commonwealth v. Hughes (1973), 364 Mass. 426, 305 N.E.2d 117; State v. Kiggins (1972), 86 S.D. 612, 200 N.W.2d 243). Attributing a broad meaning to “escape” is also consistent with the word’s ordinary usage. Webster’s Third New International Dictionary, for example, gives as one meaning: “evasion of or deliverance from what confines, limits, or holds 000 specif: an unlawful departure of a prisoner from the limits of his custody esp. when without prison breach

The defendant was committed to the Department of Corrections and sent to the Peoria Community Correctional Center. However much the limits of his confinement were temporarily enlarged, or the restrictions on his conduct temporarily lessened, he was still legally in the custody of the Center, and had a legal duty to submit to that custody. When he exceeded the lawful limits of his liberty, whether by stepping across the invisible boundary around the shopping center or by standing still while the boundary, with the passage of time, shrank to the physical confines of the Peoria Community Correctional Center itself, he escaped from the Center.

The Peoria Community Correctional Center is a penal institution. (Cf. United States v. Venable (D.C. 1974), 316 A.2d 857 (half-way house).) The defendant was confined there involuntarily as a penalty for a criminal offense; he was not free to leave except temporarily, with special permission, and on special conditions; and while at the Center, he was subject to multifarious restrictions on the personal liberties people ordinarily take for granted.

Section 2—14 of the Criminal Code of 1961 defines a penal institution as “a penitentiary, state farm, reformatory, prison, jail, house of correction, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses.” (Ill. Rev. Stat. 1977, ch. 38, par. 2—14.) The defendant argues that the listed institutions are all places of more secure confinement than the Peoria Community Correctional Center, and that under the principle of ejusdem generis, an “other institution” must be similarly secure to be a “penal institution.” We do not see why the mechanics of confinement have any special significance. The obvious explanation for work-release centers, such as the institution the defendant absconded from, not being expressly mentioned in the definition of “penal institution” is that when the Criminal Code of 1961 was written, there were no such institutions. It was not until 1967 that the legislature authorized halfway houses and work-release centers. (1967 Ill. Laws 619-23.) We think the idea of a penal institution is broad enough to encompass new varieties as they are developed. (See Commonwealth v. Hughes (1973), 364 Mass. 426, 305 N.E.2d 117.) Nor does the temporary release of inmates from the Center detract from its status as a penal institution. Inmates may be furloughed from a penitentiary, unquestionably a penal institution.

If the Center were, as defendant argues, not a penal institution, neither would its counselors be employees of a penal institution. Thus, if an inmate escaped from a counselor’s custody by knocking the counselor on the head and sprinting away, that would still not violate section 31—6(a) of the Criminal Code of 1961. We do not believe the legislature intended such an absurd result.

We also reject the defendant’s contention that the Unified Code of Corrections provision is exclusive, so that a person who escapes from a facility of the Adult Division is immune from prosecution under the Criminal Code provision. There is no inconsistency between the two escape provisions, and no reason to read either as creating any exception to the other. They simply express different, but harmonious, legislative concerns. The Criminal Code of 1961 declares that escape is especially serious, a Class 2 felony as contrasted with a misdemeanor, if the escapee is a convicted or accused felon, as opposed to a misdemeanant. The Unified Code of Corrections declares that escape is especially serious, a special offense, if it is from a facility of the Adult Division of the State corrections department, as opposed to a local or juvenile facility. If the defendant had been committed to the Department of Corrections for a misdemeanor (a possible disposition under section 5—8—6(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005—8—6(b))), his escape would nevertheless be a felony under the corrections code, and the defendant would no doubt now be urging the supremacy of section 31—6(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 31—6(b)), under which the escape would be only a misdemeanor. But we think the proper interpretation of the provisions found in the Criminal Code of 1961 and in the Unified Code of Corrections, read together, is that escape is especially serious if it is either by a felon or from the facilities of the Adult Division, around which the legislature chose to erect a special legal barrier to escape. To vindicate all the interests that must be protected, the State must be able to prosecute under either statute as it chooses.

Even if the Criminal Code of 1961 were invariably more severe than the corrections code, the coexistence of the two statutes could be justified on the ground that the legislature wanted to give prosecutors and juries a choice. (See People v. Brooks (1976), 65 Ill. 2d 343.) We see no reason to depart from the general rule that where conduct violates two criminal statutes possessing different elements or defenses (here commitment for a felony under one statute or to the Adult Division under the other) the State is free to prosecute under whichever carries the greater penalty (People v. Henderson (1978), 71 Ill. 2d 53).

The Unified Code of Corrections sometimes reads as if no other escape provision existed. The defendant particularly calls our attention to section 3—13—4, which provides in part:

“(a) The Department shall establish rules governing release status ***.
(b) If a committed person violates any rule, the Department may impose sanctions appropriate to the violation. The Department shall provide sanctions for unauthorized absences which shall include prosecution for escape under Section 3—6—4.” (Ill. Rev. Stat. 1977, ch. 38, par. 1003—13—4.)

The defendant argues that this prohibits the State’s Attorney from prosecuting escapes under the Criminal Code of 1961. Perhaps in passing and amending the corrections code, the legislature may not have had the Criminal Code consciously in mind. But that is not the same as an affirmative intent to repeal or limit the application of all other escape statutes. A focus on the Department of Corrections and a determination to achieve certain ends within that department does not imply that all other ends, such as the need to deter escapes by felons from any place where they are confined, are abandoned. A statute (here section 31—6) does not vanish when the legislature does not refer to it at every opportunity, or makes passing mention of another, similar statute (here section 3—6—4) while discussing another subject (here administrative rules). Neither by express language nor as a necessary implication from the legislative purpose did the corrections code repeal or limit the Criminal Code’s escape provision. It simply unified the separate escape provisions that had formerly existed, alongside the Criminal Code provision, for each of the State’s major penal institutions.

The phenomenon of two escape statutes covering in some instances the same conduct did not originate with the corrections code but with the Criminal Code of 1961 itself. The Criminal Code of 1961 took anti-escape prohibitions that formerly applied only to jails, workhouses, and houses of correction (Ill. Rev. Stat. 1959, ch. 38, par. 228b), and expanded them to cover all penal institutions, specifically defined (Ill. Rev. Stat. 1977, ch. 38, par. 2—14) to include penitentiaries, state farms, and reformatories, while leaving intact the special escape provisions in statutes dealing with the penitentiary (Ill. Rev. Stat. 1961, ch. 108, par. 121), the state farm (Ill. Rev. Stat. 1961, ch. 118, par. 18), and the women’s reformatory (Ill. Rev. Stat. 1961, ch. 23, par. 2807). To hold that the Criminal Code of 1961 did not apply to escapes from those institutions that had escape laws of their own would not only ignore the express definition of “penal institution” but would almost wipe out the change in the law the Criminal Code provision was designed to effect, namely expansion of the coverage to all institutions. Thus, before passage of the Unified Code of Corrections, an escapee could be prosecuted under either the Criminal Code of 1961 or the special statute dealing with the particular institution. As we have explained, we find nothing in the corrections code definite enough to convince us that the legislature intended any change in that policy.

The defendant’s central theme, running through all his arguments, is that what he did was less dangerous than a classic escape from the penitentiary, and should therefore be punished less severely. It is true that some escapes may be punished more severely than others, under some statutory provisions, because of the danger of the escape process itself. For example, a misdemeanant who escapes while armed with a dangerous weapon commits a more serious offense than one who escapes more peacefully (Ill. Rev. Stat. 1977, ch. 38, par. 31—6(d)), and someone who escapes from the Adult Division is treated more severely than someone who escapes from a lesser institution, with a further distinction according to whether he climbed the wall or merely failed to return (Ill. Rev. Stat. 1977, ch. 38, par. 1003—6—4). But section 31—6(a) of the Criminal Code of 1961, dealing with escapes by felons, is not tailored to violence in the escape process. It treats all penal institutions the same, and escape with a gun as no worse than without. In fact, until recently, when armed escape was raised from a Class 4 to a Class 2 felony, a felon escaping peacefully was committing a worse offense than a misdemeanant escaping with guns blazing (Ill. Rev. Stat. 1977, ch. 38, pars. 31—6(a), (d)), which is obviously more dangerous. The point of section 31—6 is simply to protect against the danger of a felon freeing himself and roaming the world, evading his punishment, apart from how he does it. For the purpose of that legislative policy, we see no distinction between what the defendant did here and escape in a more exciting way.

We conclude, therefore, that the defendant was properly convicted of violating section 31—6 of the Criminal Code of 1961.

Simmons also complains that he was denied his right to counsel when the circuit court, upon being informed that the public defender representing the defendant had once been an assistant State’s Attorney and had prosecuted the defendant, removed the attorney and appointed private counsel. There is no claim in this court that the second attorney was inadequate and no explanation of how the first attorney could have done better. The appellate court properly held that the issue was waived because it was not included in the post-trial motion. People v. Precup (1978), 73 Ill. 2d 7.

The judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE MORAN concurs in the judgment.


source: Caselaw Access Project

author: JUSTICE CLARK

license: Public Domain

text:
    (No. 53802.
    WILLIAM J. SCOTT, Attorney General, Appellant, v. ASSOCIATION FOR CHILDBIRTH AT HOME, INTERNATIONAL, et al., Appellees.

      Opinion filed November 20, 1981.

    Rehearing denied January 29, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Joseph D. Keenan III and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for the People.

      Leahy & Leahy, of Springfield (Mary Lee Leahy and Andrew J. Leahy, of counsel), for appellee.

       The Association cites numerous decisions of the United States Supreme Court that recognize the rights of privacy and freedom of personal choice in family matters as “fundamental.” (Meyer v. Nebraska (1923), 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 571 (childbearing and education); Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary (1925), 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (childrearing and education); Prince v. Massachusetts (1944), 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (religious training of children); Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (procreation); Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (contraception); Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (custody of minor child). These decisions concern direct regulation of these fundamental interests and are inapplicable to the case at hand.

   JUSTICE CLARK

delivered the opinion of the court:

This appeal concerns the investigative powers of the Attorney General under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121½, par. 261 et seq.) (the Act). On October 10, 1978, the Attorney General initiated an investigation of the Association for Childbirth at Home, International (the Association), by issuing to the Association, pursuant to section 3 of the Act, a requirement to file a verified statement responding to specific inquiries within 10 days of service. The requirement included a demand for copies of certain records. On the same date an administrative subpoena was issued, pursuant to section 4 of the Act, requiring the Association to appear and testify concerning its business transactions with Illinois consumers, specifically its series of childbirth classes conducted in Illinois since 1976. (The subpoena also required the production of the same documents specified in the requirement.) Following the Associations failure to respond to the requirement and subpoena, the Attorney General, on October 25, 1978, brought separate suits, pursuant to section 6 of the Act, in the circuit court of Sangamon County against the Association and its Midwest Regional Coordinator, Cathryn S. Feral. The complaints sought orders to compel the defendants to comply with the requirement and subpoena and also, pending compliance, to enjoin defendants from conducting any business or advertising in Illinois. On defendants’ motion, the suits were consolidated.

On March 24, 1980, the circuit court granted defendants’ motion to dismiss the complaints for failure to state a cause of action. The court found that the subpoena and requirement were deficient because they had been signed by an assistant Attorney General rather than by the Attorney General personally, and the Act contained no specific delegation to the assistant Attorney General of the Attorney General’s powers. The plaintiff appealed.

On June 20, 1980, the Appellate Court for the Fourth District affirmed the circuit court’s dismissal of the complaints. (85 Ill. App. 3d 311.) The appellate court, however, explicitly rejecting the circuit court’s reasoning, based its decision on its holding that part of section 2 of the Act (Ill. Rev. Stat. 1977, ch. 121½, par. 262), which prohibits unfair acts and practices in the conduct of trade or commerce, was unconstitutionally vague. We granted the Attorney General’s petition for leave to appeal.

The Association contends, as a threshold issue, that the Act does not apply to it. The Association is a California corporation engaged in educating and training parents in the area of childbirth, and in training teachers in childbirth education, specifically oriented toward childbirth at home. The Association argues that the sale of educational services is not “trade or commerce” within the meaning of the Act. We find this argument to be without merit. Section 2 prohibits unfair and deceptive practices “in the conduct of any trade or commerce.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 121½, par. 262.) Section 1(f) defines “trade or commerce” as “the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State.” (Ill. Rev. Stat. 1977, ch. 121½, par. 261.) This broad language evidences an intent that the Act have correspondingly broad applicability. We find no indication in the Act’s language and purpose of a legislative intent to exclude the advertising and sale of educational and training services from its coverage. We note that section 10b (Ill. Rev. Stat. 1977, ch. 121½, par. 270b), while it excludes transactions by a number of entities, fails to exclude transactions by educational institutions. Moreover, it is clear that purchasers of educational services may be as much in need of protection against unfair or deceptive practices in their advertising and sale as are purchasers of any other service. See, e.g., State ex rel. Douglas v. Ledwith (1979), 204 Neb. 6, 281 N.W.2d 729 (deceptive practices by operator of professional modeling school properly enjoined), and cases cited in Annot., Practices Forbidden by State Deceptive Trade Practice and Consumer Protection Acts, 89 A.L.R.3d 449, 534-35 (1979).

The Association cites our decision in Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, for the proposition that the Act does not apply to educational institutions. In Steinberg we held that a rejected applicant to the medical school had no cause of action under the Act. (69 Ill. 2d 320, 328.) However, the issue before the court there was the right of a private person to sue under the Act, not the right of the Attorney General to investigate or the scope of the Act’s regulation. The court held that the Act did not provide a remedy for persons in Steinberg’s position, because he, as an applicant, was not a “consumer” — that is, he was not a purchaser of educational services. We do not believe that Steinberg can be read as holding either that educational institutions are exempt from the Act or that students are not entitled to sue for violations.

We now consider the issue on which the decision of the appellate court turned: whether section 2 of the Act is void for vagueness. Due process, of course, requires that statutory language give fair notice of what conduct is prohibited. A statute is unconstitutionally vague when its terms are so indefinite that “persons of common intelligence must necessarily guess at its meaning and differ as to its application.” (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 300.) The Association contends, however, that the Act is subject to a stricter standard, first, because it affects the exercise of rights protected by the first and fourteenth amendments to the Federal Constitution and, second, because it is a penal statute. Citing cases in which the United States Supreme Court invalidated statutes on the ground of vagueness, the Association argues that where a statute is capable of being applied to conduct protected by the first amendment, the due process clause of the fourteenth amendment “demands a greater degree of specificity than in other contexts.” Smith v. Goguen (1974), 415 U.S. 566, 573, 39 L. Ed. 2d 605, 612, 94 S. Ct. 1242, 1247.

What are the activities that the Association claims require us to hold the Act to this stricter standard, and how does the Act affect them? The Association’s childbirth-training activity, it asserts, is “intimately related” to the exercise by parents of constitutionally protected rights of privacy and freedom of personal choice in matters relating to the decision to have children, as well as to their rearing and nurture. The Consumer Fraud and Deceptive Business Practices Act is aimed at regulation, not of fundamental rights, but of unfair, fraudulent and deceptive business practices. Even assuming that prospective parents do have a constitutionally protected right to learn about or to practice home childbirth, the Act affects it only incidentally, if at all, and we do not believe it impermissibly encroaches on a constitutionally protected area.

We reject the Association’s argument that the Act must be held to a stricter standard of definiteness because it is capable of reaching constitutionally protected speech. In recent years it has been recognized that even “purely commercial” speech is entitled to a limited degree of first amendment protection. (Bigelow v. Virginia (1975), 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817.) However, the Supreme Court has repeatedly emphasized that the first amendment is not a bar to State regulation prohibiting false, misleading or deceptive commercial speech. ('Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 771, 48 L. Ed. 2d 346, 364, 96 S. Ct. 1817, 1830; Bates v. State Bar of Arizona (1977), 433 U.S. 350, 383, 53 L. Ed. 2d 810, 835, 97 S. Ct. 2691, 2708.) “By definition, commercial speech is linked inextricably to commercial activity: while the First Amendment affords such speech ‘a limited measure of protection,’ it is also true that ‘the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.’” (Friedman v. Rogers (1979), 440 U.S. 1, 10-11 n.9, 59 L. Ed. 2d 100, 110 n.9, 99 S. Ct. 887, 894 n.9, quoting Ohralik v. Ohio State Bar Association (1978), 436 U.S. 447, 456, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918.) Thus the investigation and regulation of unfair or deceptive business practices under the Act does not, because it cannot, impinge upon constitutionally protected speech. Since the Act prohibits only such speech as amounts to a fraudulent or deceptive practice, i.e., false or misleading advertising, it can affect only speech that is by definition outside the ambit of first amendment protection, and within the scope of permissible State regulation. The Association’s right to impart truthful and accurate information concerning its services was not threatened by the Attorney General’s investigation. Moreover, there is little likelihood that protected speech would be inhibited or “chilled” by the Act. As the court stated in Bates: “Since the advertiser knows his product and has a commercial interest in its dissemination, we have little worry that regulation to assure truthfulness will discourage protected speech.” 433 U.S. 350, 383, 53 L. Ed. 2d 810, 835, 97 S. Ct. 2691, 2709.

We find the Association’s argument that the Act must be held to a strict standard of definiteness because it is penal in nature to be entirely without merit. The Act is a regulatory and remedial enactment intended to curb a variety of fraudulent abuses and to provide a remedy to individuals injured by them. Its stated purpose, set forth in its preamble, is to protect Illinois consumers, borrowers, and businessmen against fraud, unfair methods of competition, and other unfair and deceptive business practices. The Act is clearly within the class of remedial statutes which are designed to grant remedies for the protection of rights, introduce regulation conducive to the public good, or cure public evils. (82 C.J.S. Statutes §388 (1953); see American Buyers Club v. Honecker (1977), 46 Ill. App. 3d 252, 257.) The fact that a civil penalty of up to $50,000 can be imposed does not make the Act a penal statute. (See Helvering v. Mitchell (1938), 303 U.S. 391, 399-401, 82 L. Ed. 917, 921-23, 58 S. Ct. 630, 633-34; One Lot Emerald Cut Stones v. United States (1972), 409 U.S. 232, 237, 34 L. Ed. 2d 438, 443, 93 S. Ct. 489, 493.) Rather, as in the case of the Environmental Protection Act, the penalty is but one part of the regulatory scheme, intended as a supplemental aid to enforcement rather than as a punitive measure. City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 490.

In light of the foregoing, we conclude that whether section 2 is void for vagueness is to be determined by the inquiry whether it is sufficiently clear and definite as to give adequate notice to persons of reasonable intelligence of what conduct it proscribes. Section 2 declares to be unlawful “[ujnfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act,’ approved August 5, 1965, in the conduct of any trade or commerce (Ill. Rev. Stat. 1977, ch. 121½, par. 262.) The section further directs that it be construed in light of the interpretations given to section 5(a) of the Federal Trade Commission Act (15 U.S.C. §45(a) (1976)) by the decisions of the Trade Commission and the Federal courts.

We believe that such words as “deception,” “false pretense,” “misrepresentation,” and “fraud,” while they are descriptive and generic terms, are words commonly used and understood by the general public and by businessmen. They are “sufficiently explicit to inform those who are subject to [the Act] of the conduct on their part to which it applies” (Stein v. Howlett (1972), 52 Ill. 2d 570, 580), and therefore cannot be said to be unconstitutionally vague. (Stein v. Howlett (“constructive control” and “close economic association,” in Governmental Ethics Act, not vague); Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287 (“business entity” and “direction or authorization of a responsible official” in Illinois Purchasing Act commonly used and understood, and not vague).) In Chastek v. Anderson (1981), 83 Ill. 2d 502, we held that the term “unprofessional conduct” as used in the dental-licensing statute was not unconstitutionally vague, noting that it was susceptible of common understanding by those to whom it applied, and that, in light of the statutory purpose, it provided fair notice to licensed professionals that acts of incompetent treatment would be grounds for license revocation. (83 Ill. 2d 502, 509-10.) Similarly, businessmen subject to regulation by the Consumer Fraud and Deceptive Business Practices Act may reasonably be expected to understand what is comprehended by such common expressions as “misrepresentation.”

The Association finds the word “unfair,” as in the phrases “unfair methods of competition” and “unfair acts or practices 000 in the conduct of any trade or commerce,” particularly ambiguous and objectionable. However, this very language — taken from section 5(a) of the Federal Trade Commission Act — has a venerable history of interpretation and definition by the Federal courts, and now can be said to have a well-settled meaning in Federal trade-regulation law. (See Federal Trade Com. v. Sperry & Hutchinson Co. (1972), 405 U.S. 233, 31 L. Ed. 2d 170, 92 S. Ct. 898; Spiegel, Inc. v. Federal Trade Com. (7th Cir. 1976), 540 F.2d 287.) The statutory references to the Federal courts’ interpretations and to section 2 of the Deceptive Trade Practices Act further define and clarify its meaning.

The terms “unfair practice” and “unfair methods of competition” are inherently insusceptible of precise definition. As we recognized when the issue of the vagueness of section 2 was first before us, effective regulation requires that the concept be flexible, defined on a case-by-case basis, “in view of the futility of attempting to anticipate and enumerate all the [unfair] methods” and practices that fertile minds might devise. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 185-86. See also People v. Raby (1968), 40 Ill. 2d 392, 396; Stein v. Howlett (1972), 52 Ill. 2d 570, 579-81, and cases there cited.) Greater leeway in definition is allowed the legislature in the context of regulatory statutes governing business activities. (Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 162, 31 L. Ed. 2d 110, 116, 92 S. Ct. 839, 843. United States v. National Dairy Products Corp. (1963), 372 U.S. 29, 9 L. Ed. 2d 561, 83 S. Ct. 594 (Robinson-Patman Act).) We therefore hold that the terms “unfair methods of competition” and “unfair acts or practices” have a sufficiently definite and well-established meaning to overcome the charge of vagueness, and join the courts of other States that have so held with respect to comparable legislation. Department of Legal Affairs v. Rogers (Fla. 1976), 329 So. 2d 257, 267; State v. Readers Digest Association, Inc. (1972), 81 Wash. 2d 259, 501 P.2d 290; State ex rel. Sanborn v. Koscot Interplanetary, Inc. (1973), 212 Kan. 668, 512 P.2d 416.

The Association’s contention that section 2 is unconstitutional because it fails to provide an adequate standard to guide the discretion of enforcement officials is another version of its vagueness challenge. The Association relies on Smith v. Goguen (1974), 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242, and Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839, in which the United States Supreme Court focused on a particular vice of vague statutory language: that it leaves it entirely up to law-enforcement officials in their “unfettered discretion” to decide when and whom to prosecute, thus permitting arbitrary and discriminatory enforcement of the law. These decisions, which involved criminal statutes that impinged directly on expression protected by the first amendment, are inapposite. As our previous discussion should have made clear, this case does not involve an attempt to regulate protected speech or an impermissible infringement of personal liberty protected by the fourteenth amendment. The United States Supreme Court itself noted that the rather stringent vagueness analysis of the first amendment cases is inapplicable in the context of business regulation. (Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 161, 31 L. Ed. 2d 110, 115, 92 S. Ct. 839, 842; Smith v. Goguen (1974), 415 U.S. 566, 573, 39 L. Ed. 2d 605, 612, 94 S. Ct. 1242, 1247; United States v. National Dairy Products Corp. (1963), 372 U.S. 29, 36, 9 L. Ed. 2d 561, 568, 83 S. Ct. 594, 599.) Finally, our conclusion that section 2 is sufficiently definite to serve as a guide to those who must comply with it disposes of the contention that the Attorney General is left without a guide in enforcing the Act. Just as section 2 defines what conduct is prohibited, it defines what conduct is properly the subject of the Attorney General’s investigative and enforcement activities.

The Association next challenges the constitutionality of sections 3 and 4 of the Act. It contends that statutory authorization of an investigation upon the Attorney General’s “mere belief” that one would be in the public interest, with no requirement that he allege the facts forming the basis of his belief, violates the fourth amendment’s prohibition on unreasonable searches and seizures, as well as the due process clause of the fourteenth. In effect, the Association asserts that a probable cause standard should govern the initiation of administrative investigations under the Act. It also contends that the Attorney General’s subpoena was so unreasonable in its demands and general in its terms as to amount to a “constructive search.”

The appellate court rejected the first contention, stating: “Issuance of the administrative subpoena is not dependent upon the pendency of a charge or the existence of probable cause.” (85 Ill. App. 3d 311, 319.) It did not discuss the Association’s arguments directed to the requirement to file the verified statement and subpoena. We note, however, that much of the Association’s memorandum in support of its motion to dismiss in the circuit court was devoted to this second issue. The parties have argued and briefed both issues extensively before this court. While we agree with the' appellate court’s conclusion on the probable cause issue, we think it is appropriate — both to clarify our opinion and to speed the conclusion of this litigation after remand to the circuit court — to discuss both issues in some detail.

As the appellate court recognized, it has been settled since Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 90 L. Ed. 614, 66 S. Ct. 494, that the Federal Constitution does not require a showing of probable cause as a prerequisite to a Federal agency’s initiating an administrative investigation. In Oklahoma Press Publishing, the Federal Wage-Hour Administrator, acting under his authority to ascertain whether petitioners were violating the Fair Labor Standards Act, issued administrative subpoenas for specified records. The United States Supreme Court held that no unreasonable search or seizure was involved in judicial enforcement of the subpoenas, stating, “It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one.” (327 U.S. 186, 208-09, 90 L. Ed. 614, 629-30, 66 S. Ct. 494, 505.) Rather, “[the Administrator’s] investigative function, in searching out violations with a view to securing enforcement of the Act, is essentially the same as the grand jury’s, ### and is governed by the same limitations. These are that he shall not act arbitrarily or in excess of his statutory authority, but this does not mean that his inquiry must be ‘limited by forecasts of the probable result of the investigation.’” 327 U.S. 186, 216, 90 L. Ed. 614, 634, 66 S. Ct. 494, 509.

In United States v. Morton Salt Co. (1949), 338 U.S. 632, 94 L. Ed. 401, 70 S. Ct. 357, the court further elaborated its views as to the constitutional limitations on administrative investigations. In upholding the Federal Trade Commission’s authority to require reports showing compliance with previous cease and desist orders, the court said:

“The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. 600 [An administrative agency] has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” 338 U.S. 632, 642-43, 94 L. Ed. 401, 410-11, 70 S. Ct. 357, 364.

The issue of the fourth amendment’s limitations on administrative investigations was presented to this court in Vissering Mercantile Co. v. Annunzio (1953), 1 Ill. 2d 108. The challenge there was to the investigative powers granted the Department of Labor under the Illinois minimum wage law. The court relied on Oklahoma Press Publishing in holding that the statute did not offend the search and seizure provisions of either the Illinois or the Federal Constitution. Other Illinois cases have approved the reasoning of these decisions. People v. Allen (1951), 410 Ill. 508; Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556; People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332.

The foregoing decisions are still sound and set forth the appropriate standards for assessing the constitutionality of administrative investigations such as this one. The authority of the Morton Salt and Oklahoma Press Publishing decisions is unquestioned in the Federal system. (See United States v. Powell (1964), 379 U.S. 48, 13 L. Ed. 2d 112, 85 S. Ct. 248; 1 K. Davis, Administrative Law §§4:4, 4:5 (2d ed. 1978).) They have been followed by the courts of several States in upholding similar provisions for investigation in their consumer protection statutes. Commonwealth ex rel. Hancock v. Pineur (Ky. 1976), 533 S.W.2d 527; Steele v. State ex rel. Gorton (1975), 85 Wash. 2d 585, 537 P.2d 782; Cuna Mutual Insurance Society v. Attorney General (1980), 380 Mass. 539, 404 N.E.2d 1219.

The effectiveness of regulatory legislation depends on the ability of the officials responsible for enforcing it to obtain information. (See generally 1 K. Davis, Administrative Law §§3.01 through 3.03 (1958).) In the case of the Consumer Fraud and Deceptive Business Practices Act, the Attorney General’s ability to investigate potential violations, without waiting for a consumer to be injured, promotes the Act’s remedial aims. As the Supreme Court observed in Morton Salt-.

“Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.” (338 U.S. 632, 652, 94 L. Ed. 401, 416, 70 S. Ct. 357, 369.)

The Attorney General’s investigative powers are not unrestricted. (People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332, 344-45.) “But it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant.” (United States v. Morton Salt Co. (1949), 338 U.S. 632, 652, 94 L. Ed. 401, 416, 70 S. Ct. 357, 369.) We therefore hold that the grant of investigative powers to the Attorney General under the Act does not violate the fourth amendment of the United States Constitution or article I, section 6, of the Illinois Constitution.

Nor do we believe that the investigation undertaken in this case violated the Association’s constitutional rights. Our decisions recognize that an administrative subpoena may be so unreasonable in its demands, or so indefinite and general in its terms, as to go beyond the statutory purpose for which the inquiry was authorized and amount to a “constructive search.” (People v. Allen (1951), 410 Ill. 508, 512-13; People ex rel. Legislative Com. On Low Income Housing v. Keefe (1967), 36 Ill. 2d 460, 465; People v. Lurie (1968), 39 Ill. 2d 331.) In such a case, the circuit court is not without power to modify a subpoena. (People v. Allen (1952), 410 Ill. 508, 510; United States v. Powell (1964), 379 U.S. 48, 58, 13 L. Ed. 2d 112, 120, 85 S. Ct. 248, 255.) In testing the validity of an administrative subpoena, the appropriate considerations are: (1) the constitutionality of the statute, (2) whether the contemplated agency proceedings are included within the statutory authority, (3) the reasonableness of the demand, and (4) the relevance of the information sought. (Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 562.) We have determined that the subpoena and requirement to file in this case were reasonably definite, and that the information requested was reasonably related to the determination whether violations of section 2 of the Act might have occurred.

The permissible scope of an administrative subpoena, and of any administrative demand for information or the production of documents, is measured by the relevance of the information sought to the problem under investigation. (People v. Allen (1951), 410 Ill. 508, 516-17.) In the case of an administrative investigation authorized by statute, relevance must be measured with reference to the statutory purpose, which defines the problem to be investigated. Here, the Attorney General’s subpoena stated that it sought information concerning “business transactions with consumers of Illinois, since September 24, 1976 concerning ACHI series of childbirth classes in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act.” It listed 13 documents, copies of which were to be produced within 12 days from the date of service (for example: list of parents in Illinois who have taken, are taking, or have agreed to take the series of childbirth classes; copies of all contracts, agreements and papers signed by these parents; copies of all press releases issued by the Association in Illinois; copies of all advertisements, brochures, documents and other papers provided to persons taking the classes; a copy of the ACHI Leader Pack, a 2504-page compilation of medical journal articles; a copy of the Association’s articles of incorporation; any documents showing whether the Association is a nonprofit corporation). The requirement to file, served together with the subpoena, asked the Association to prepare within 10 days a verified statement responding to 58 specific inquiries (for example: the names and addresses of present and past officers, directors and employees; the Association’s places of business in Illinois; the qualifications and training of Certified Childbirth Educators; the Association’s methods of soliciting parents to take its childbirth classes; whether the Association or its employees carry insurance to cover potential liabilities arising from its activities; whether any Certified Childbirth Educator has ever been present or assisted at or performed medical procedures during a home childbirth).

Without detailing all of the information sought by the subpoena and requirement to file, we think that it was reasonably related to the inquiry into the nature of the Association’s business and its transactions with Illinois consumers, with a view to ascertaining the truthfulness and accuracy of its advertising and the fairness of its dealings with Illinois residents, clearly a subject within the scope of inquiry authorized by the Act. It should be borne in mind that the purpose of such an investigation, like that of the grand jury, is to uncover matters previously unknown to the investigating body which may or may not provide grounds for further action. (People v. Allen (1951), 410 Ill. 508, 517.) It cannot know in advance what its investigation may produce; therefore, the most that can be required is that the investigator provide a “reasonably informative description” of what is required. (People ex rel. Legislative Com. On Low Income Housing v. Keefe (1967), 36 Ill. 2d 460, 465.) We think the Attorney General has done so here.

The Association has attacked the proposed investigation as unreasonable without really specifying why. It appears to believe that any investigation would be unreasonable, on the grounds that this would infringe upon its first amendment rights. Interestingly, the defendants in Oklahoma Press Publishing — newspaper publishers — also sought to raise the first amendment as a complete bar to investigation. The Supreme Court found, as we do, that the investigation posed no threat to protected expression. (Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 192-93, 90 L. Ed. 614, 620-21, 66 S. Ct. 494, 497.) We also fail to see any potential infringement of associational freedom. NAACP v. Alabama ex. rel. Patterson (1958), 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163, is inapposite.

The Association argues that the assistant Attorney General was without authority to issue the subpoena and requirement to file, since the Act does not expressly authorize the Attorney General to delegate his investigative powers to assistants. We think that the appellate court correctly disposed of this contention and believe there is little to be added to its analysis. (85 Ill. App. 3d 311, 314-15.) In Fleming v. Mohawk Wrecking & Lumber Co. (1947), 331 U.S. Ill, 12123, 91 L. Ed. 1375, 1384-85, 67 S. Ct. 1129, 113435, the United States Supreme Court held that the subdelegation, by the Administrator of Emergency Price Controls, of his power to issue administrative subpoenas was proper, even in the absence of express statutory authorization to do so. Where a statute vests power in a single executive head, but is silent on the question of subdelegation, the clear majority view is that the legislature, “understanding the impossibility of personal performance, impliedly authorized the delegation of authority to subordinates.” (1 A. Sutherland, Statutory Construction 436.14 (4th ed. 1972).) The subpoena and requirement were properly signed by the assistant Attorney General.

Administrative investigations, like other administrative proceedings, are subject to due process constraints. Not all the procedures traditionally associated with due process in judicial proceedings are required (nor are they appropriate) in administrative proceedings. (Hannah v. Larche (1960), 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502.) However, an investigation that is arbitrary or in excess of statutory authority or undertaken for an improper purpose, such as to harass, violates due process. (United States v. Powell (1964), 379 U.S. 48, 58, 13 L. Ed. 2d 112, 119-20, 85 S. Ct. 248, 255.) We note that the exercise of the Attorney General’s investigative powers under the Act is subject to judicial supervision. The Attorney General has no power of his own to compel either the filing of reports or the production of documents. If voluntary compliance is refused, he must resort to a court for an order enforcing compliance. (Ill. Rev. Stat. 1977, ch. 121½, pars. 266, 267.) The safeguard against abuse or excessive zeal that is satisfied, in the case of actual search or seizure, by the warrant and probable cause requirements is provided in the case of an administrative investigation by judicial review in the enforcement proceeding. Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 217, 90 L. Ed. 614, 634, 66 S. Ct. 494, 510.

For the foregoing reasons, the judgment of the appellate court is reversed in part and affirmed in part. The judgment of the circuit court is reversed and the cause is remanded to that court for further proceedings consistent with this opinion.

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

       Under section 3, the Attorney General is empowered to initiate investigations in three circumstances: (1) when he becomes aware of an existing or threatened violation; (2) when a consumer has filed a written complaint; and (3) when he believes that an investigation to ascertain whether a person has violated, is violating, or is about to violate the Act would be in the public interest. In aid of his investigation, the Attorney General may require preparation of a written report containing such information as he may consider necessary; to take sworn testimony from any person in connection with the conduct of any trade or commerce; and to examine any merchandise, record, book, document, account or paper as he may consider necessary. (Ill. Rev. Stat. 1977, ch. 121½, par. 263.) Section 4 authorizes the Attorney General to issue subpoenas, administer oaths and affirmations, conduct hearings, and prescribe rules and regulations to accomplish the objectives and carry out the duties prescribed by the Act. Ill. Rev. Stat. 1977, ch. 121½, par. 264.

       The cases assimilate the “true” administrative investigation, by a regulatory agency, to investigations by grand juries and legislative commissions. (People v. Allen (1951), 410 Ill. 508; see Hannah v. Larche (1960, 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502.) An investigation by the Attorney General, carrying out his enforcement responsibilities under the Act, is indistinguishable. See People ex rel. MacFarlane v. American Banco Corp. (1977), 194 Colo. 32. 37-38. 570 P.2d 825, 829.

       A “constructive search” obviously differs from an actual search and seizure in that no physical entry onto premises or seizure of property occurs. (See Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 195, 202-08, 90 L. Ed. 614, 622, 625-29, 66 S. Ct. 494, 502-05.)) It is mainly for this reason that the warrantless-search cases cited by the Association are inapplicable. (E.g., Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816; Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391.) In further distinction to these cases, we note that there can be no compelled production of documents under the Act until a court has become involved.

       The Association might have had a justifiable complaint that requiring response within 10 days was unreasonable, considering the volume of information requested. In this case the proper course was for it to seek a modification or an extension of time from the Attorney General. (United States v. Morton Salt Co. (1950), 338 U.S. 632, 94 L. Ed. 401, 416, 70 S. Ct. 357, 369.) It could also have asked the circuit court, in the enforcement proceeding, for a modification.


text:
    (No. 54118.
    THE PEOPLE ex rel. TYRONE FAHNER, Attorney General, Appellant, v. CARRIAGE WAY WEST, INC., et al., Appellees.

      Opinion filed November 13, 1981.

    Rehearing denied January 29, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Thomas M. Genovese and Stephen P. Juech, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Malato 8c Stein, P.C., of Chicago (Robert S. Minetz and Stephen H. Malato, of counsel), for appellee Sportsman’s Country Club, Inc.
    Hinshaw, Culbertson, Moelmann, Hob an & Fuller, of Chicago (Perry L. Fuller, D. Kendall Griffith, and Stephen R. Swofford, of counsel), for appellees Midwest Country Club and Cherry Hills Country Club, Inc.
    McDermott, Will & Emery, of Chicago (Samuel Weisbard, of counsel), for appellees Cog Hill Golf & Country Club, Inc. et al.

    Sidley & Austin, of Chicago (Frederic F. Brace, Jr., and William J. Nissen, of counsel), for appellee Carson Pirie Scott & Co.
    Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago, for appellee Harold Friedman.
    Hogan & McNulty, of Chicago (William E. McNulty, of counsel), for appellee Gleneagles Country Club, Inc.
    Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Louis R. Bertani, John L. O’Brien, and Michael W. Hansen, of counsel), for appellee New Community Enterprises Sales, Inc.
    Rothschild, Barry & Myers, of Chicago (Edward I. Rothschild and Melvin I. Mishkin, of counsel), for appellee Timber Trails Country Club, Inc.
    Levy & Erens, of Chicago (Jay Erens and James M. Lawniczak, of counsel), for appellee Westgate Valley Country Club, Inc.
    Klein, Thorpe & Jenkins, Ltd., of Chicago (E. Kenneth Friker, of counsel), for appellee George Gee.
    Michael W. Rathsack, of Chicago, for appellee Steven Gianakas, d/b/a Hickory Hills Country Club.
    Sonnenschein, Carlin, Nath & Rosenthal, of Chicago (Kenneth H. Hock, of counsel), for appellee Chicagoland Golf Association.
    Mitchell, Russell & Kelly, of Chicago (Thomas J. Russell, of counsel), for appellee Silver Lake Country Club, Inc.
    Schumacher, Jones, Vallely, Kelly & Olson, of Chicago (Frank G. Siepker, of counsel), for appellee Al Lehman.
    Martin, Craig, Chester & Sonnenschein (Edward Atlas, of counsel), for appellees Old Oak, Inc., and Villa Olivia Country C.lub, Inc.
   JUSTICE SIMON

delivered the opinion of the court:

The Attorney General filed a two-count civil complaint in the circuit court of Cook County on behalf of the People of the State of Illinois under the Illinois Antitrust Act (Ill. Rev. Stat. 1975, ch. 38, par. 60—7(4)). The complaint alleged that the defendants had entered into a conspiracy to fix the greens fees and golf-cart-rental prices at various golf courses the defendants operated, in violation of section 3(1)(a) of the Act (Ill. Rev. Stat. 1975, ch. 38, par. 60—3(1)(a)). While some defendants answered the complaint, denying its .allegations, others moved to dismiss the complaints for failure to state a cause of action. The circuit court granted the motion and dismissed the complaint with leave to amend within 60 days pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, pars. 45, 48). The Attorney General, instead of amending the complaint, asked this court for leave to file a petition for writ of mandamus or for a supervisory order. When that motion was denied, the Attorney General returned to the circuit court and sought leave to file an amended complaint instanter, but leave was denied. The cause was later dismissed. The appellate court affirmed (88 Ill. App. 3d 297), and this court granted leave to appeal under Rule 315 (73 Ill. 2d R. 315).

The complaint at issue, after reciting the jurisdiction of the court and the proper venue, defined its terms and named the defendants, who are operators of golf courses in the Chicago area open to the public upon the payment of a fee, known in the trade as a “greens fee.” The complaint charged that, except for the illegal activity, all the defendants would have been competitors for the over five million people who had paid greens fees to them in the time covered by the complaint. Also named as a defendant was the Chicagoland Golf Association, an Illinois not-for-profit corporation which claimed all the defendants as members. The association was charged with holding periodic meetings and circulating the minutes of those meetings to all members of the association.

The substance of count I of the complaint was that from November 1970 to and through 1975 the defendants conspired to fix prices. It alleged:

“19. Defendants and co-conspirators have entered into an agreement, understanding, and concert of action the substantial terms of which were to fix, control and maintain the rate of greens fees charged to the general public.
20. That in furtherance of the aforesaid unlawful combination and conspiracy, the defendants and co-conspirators employed the following means and methods, among others:
A. Beginning at least as early as October 1970, and from time to time thereafter, (the exact times being unknown to the plaintiff) the defendants and co-conspirators met at various locations in Cook County and discussed and agreed upon the rate of greens fees to be charged to the general public;
B. On or before March 26,1974, the exact date being unknown to plaintiff, defendants and co-conspirators agreed to fix a date when reduced winter rates would be discontinued and summer rates would be imposed;
C. Defendants and co-conspirators not in attendance at the aforementioned meetings were informed of the discussions and agreements reached at these meetings by receiving printed minutes prepared by the Secretary of the Association.”

A similarly worded count II charged the fixing of golf-cart-rental prices. The claimed effect of each agreement was the suppression of competition. The complaint sought injunctive relief and the maximum penalty of $50,000 against each of the defendants.

The purpose of pleadings is to present, define and narrow the issues and limit the proof needed at trial. Pleadings are not intended to erect barriers to a trial on the merits but instead to remove them and facilitate trial. The object of pleadings is to produce an issue asserted by one side and denied by the other so that a trial may determine the actual truth. (Fleshner v. Copeland (1958), 13 Ill. 2d 72, 77; Warnes v. Champaign County Seed Co. (1955), 5 Ill. App. 2d 151, 156; McKinney v. Nathan (1954), 1 Ill. App. 2d 536, 545.) Perhaps the best measure of a complaint’s sufficiency, then, is whether the defendant is able to answer the essential allegations. Most of the defendants were able to do so here, but because some moved instead to dismiss the complaint, further analysis is necessary.

Illinois is a fact-pleading State. This means that although pleadings are to be liberally construed and formal or technical allegations are not necessary, a complaint must, nevertheless, contain facts to state a cause of action. (Ill. Rev. Stat. 1975, ch. 110, par. 31.) Which facts? The complaint is deficient when it fails to allege the facts necessary for the plaintiff to recover. (Fanning v. LeMay (1967), 38 Ill. 2d 209, 212.) “But it is a rule of pleading long established, that a pleader is not required to set out his evidence. To the contrary, only the ultimate facts to be proved should be alleged and not the evidentiary facts tending to prove such ultimate facts.” Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, 446-47.

To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. (See, e.g., Ritchey v. Maksin (1978), 71 Ill. 2d 470, 475; Pierce v. Carpentier (1960), 20 Ill. 2d 526, 530-31.) Second and unlike Federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed. See, e.g., Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 376-77.

The complaint here charged a conspiracy to fix prices in violation of section 3(1)(a) of the Illinois Antitrust Act (Ill. Rev. Stat. 1975, ch. 38, par. 60—3(1)(a)). There can be no question of its legal sufficiency. Price fixing is a per se violation of our antitrust statute, and by stating the business of the defendants to be golf course operators, the complaint took them out of the statutory exemption provided by section 5(12) (Ill. Rev. Stat. 1975, ch. 38, par. 60—5(12)).

As for factual sufficiency, the ultimate facts needed to prove a violation of section 3(1)(a) are agreements among those who would otherwise be competitors for the purpose or with the effect of fixing the price charged for any goods or service received. These ultimate facts were alleged in paragraph 19 of the complaint with respect to charges for greens fees and in paragraph 23 for golf-cart rentals. In addition, paragraph 20(B) alleged an agreement, entered into prior to March 26, 1974, upon a date on which higher summer rates would be placed in effect.

The complaint, in paragraph 20, also pleaded overt acts by co-conspirators in furtherance of the agreement to fix prices: meetings of co-conspirators to discuss specific prices and then minutes of those meetings circulated to the participants in the conspiracy who had agreed to adhere to the price fixing, but who were not present at the meetings. Under Federal antitrust law, which the Illinois Antitrust Act adopts (Ill. Rev. Stat. 1975, ch. 38, par. 60—11), no overt act is required to prove a price-fixing conspiracy. (United States v. Socony-Vacuum Oil Co. (1940), 310 U.S. 150, 224 n.59, 84 L. Ed. 1129, 1168 n.59, 60 S. Ct. 811, 845-46 n.59; United States v. Trenton Potteries Co. (1927), 273 U.S. 392, 402, 71 L. Ed. 700, 707, 47 S. Ct. 377, 381; Nash v. United States (1913), 229 U.S. 373, 378, 57 L. Ed. 1232, 1236, 33 S. Ct. 780, 782.) The portion of the complaint alleging overt acts was therefore technically unnecessary. Its presence, however, alleging the manner in which the price-fixing conspiracy was carried out, bolsters the conclusion that the complaint satisfactorily pleaded facts sufficient to show that the plaintiff was not simply paraphrasing the Illinois Antitrust Act. The complaint, on its face, shows that there is a valid issue which, if denied, calls for a trial.

The defendants claim that the complaint does not describe any specific act which evidenced the entry of any particular defendant into the conspiracy. But evidence need not be laid out in the complaint, only the ultimate fact that the defendants agreed to fix prices. The trial, not the pleadings, is the proper place to look for evidence of how and when the illegal agreement was made. As for the details of the agreement, the only terms that had to be pleaded were the object —the fixing of greens fees and golf-cart rentals —and the effect — the suppression of competition. These were alleged as well as the date on which higher summer rates would be instituted. Such specifics as when, where, or through what agent defendants came to agree were not required in the complaint.

The defendants also claim that the complaint’s terms are conclusional. The line between conclusions of law and ultimate facts is sometimes dim. (Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 376.) Suffice it to say that it is enough for a complaint under the Illinois Antitrust Act to allege that defendants agreed to fix prices in a specific area of commerce (in this case greens fees and golf-cart-rental fees) and suppressed competition. That will start the suit by putting the defendants on notice of the plaintiff’s legal theory and underlying facts. Further facts can be developed in discovery and at trial.

The Attorney General’s complaint stated a cause of action and should not have been dismissed. Actually, much of the foregoing analysis is unnecessary because óf this court’s disposition of People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332. In that case an indictment was challenged which bore a striking similarity to the complaint here. Like the complaint, the indictment in Crawford Distributing recited the proper jurisdiction and venue, defined its terms, and named the defendants, who were the principal beer distributors in Macon County. Also named but as an unindicted co-conspirator was the Beverage Wholesaler’s Association. Like the complaint in this case, the indictment charged a violation of section 3(1)(a) of the Illinois Antitrust Act. Specifically, the defendants were charged with conspiring and agreeing to fix the wholesale price of beer. The indictment alleged that the conspirators:

“(a) held periodic meetings to plan and carry out the terms of the aforesaid conspiracy;
(b) increased and fixed the price of beer sold at wholesale by the Defendant Distributors to Retailers located in Macon County, Illinois.”

The court held that the indictment was sufficiently specific because it enabled those charged to prepare a defense and precluded further prosecutions for the crime charged. 53 Ill. 2d 332, 346.

If an indictment of this type satisfies the more rigid procedural requirements of a criminal prosecution, a complaint similarly worded should satisfy the requirements of the Civil Practice Act. Both the indictment and complaint notify the defendants of the cause of action brought and the facts upon which the cause is predicated, so that the defendants can prepare a defense. The difference lies in the adequacy of the notice required. Criminal charges must be more specific because criminal defendants have a much narrower array of discovery devices with which to prepare for trial. Compare Ill. Rev. Stat. 1979, ch. 38, pars. 114—9, 114—10, 114—13, and 73 Ill. 2d Rules 411, 412, and 414, 415, with Ill. Rev. Stat. 1979, ch. 110, par. 58, and 73 Ill. 2d Rules 201 through 219.

The appellate court, however, thought that Crawford was of little consequence because, unlike this case, it involved only a single class of defendants. The appellate court’s theory, which the defendants assert here, was that the complaint charges two different classes of defendants — one consisting of those who attended the meetings at which prices were fixed and the other consisting of those who were absent from the meetings but who learned of the prices when they received copies of the minutes. The appellate court concluded that the complaint was deficient in failing to identify the particular defendants in each class and by attributing liability to those who did not attend the meetings merely on the basis of their having received the minutes which gave them knowledge of the prices that had been set. For these reasons, the appellate court concluded, the complaint was ambiguous and indefinite and failed to state a cause of action.

The dichotomy between the defendants which the appellate court perceived and on which it relied is based upon a misreading of the complaint. The complaint alleges but one class of defendants — those who agreed to fix greens fees and charges for golf-cart rentals. The specific prices to be charged pursuant to the agreement were decided upon at the meetings at various locations in Cook County. Those who did not attend the meetings were informed pursuant to the conspiracy and agreement of the specific amounts to be charged by receiving a copy of the minutes of the meetings. But no defendant is charged with becoming a member of the conspiracy or gaining knowledge of its existence merely by receiving a copy of the minutes. All are charged with active price-fixing. In addition, the appellate court appears to have disregarded paragraph 20(B) of the complaint, which refers to all defendants and alleges an agreement relating to the dates on which winter rates would be discontinued and higher summer rates would be placed in effect. This is a separate allegation from the reference in paragraph 20(A) to various meetings held in Cook County and does not allege that the agreement with respect to summer rates was reached at the meetings which were not attended by all of the co-conspirators.

One of the defendants, Sportsman’s Country Club, Inc., claims that the complaint is deficient because it makes Sportsman’s a party to a conspiracy formed before Sportsman’s was incorporated. There is no error in charging Sportsman’s with having participated in an existing conspiracy. As is the case under Federal antitrust laws, once a conspiracy is established the acts of any co-conspirator become the acts of all co-conspirators, even those who joined the conspiracy after the act in question. (United States v. United States Gypsum Co. (1948), 333 U.S. 364, 393, 92 L. Ed. 746, 765, 68 S. Ct. 525, 541.) Thus, if the allegations of the complaint are true (and on a motion to dismiss for failure to state a cause of action it must be assumed that they are), Sportsman’s did not join the conspiracy with a clean slate, but immediately became responsible for all the transgressions that had occurred before it joined.

On the substantive issues presented, then, the Attorney General should have prevailed. Some procedural pitfalls remain to be traversed. When the complaint was dismissed the Attorney General, instead of amending within the 60 days permitted by the dismissal order, sought a writ of mandamus or a supervisory order from this court reversing the circuit court. This court declined to hear the case and denied the motion for leave to file the Attorney General’s petitions on January 10, 1978—7 days after the time set by the circuit court order for filing an amended complaint. The next day the Attorney General attempted to file his amended complaint instanter. Six days later leave was denied because the 60 days which the court had allowed for amendment had expired. When leave was denied, the Attorney General appealed, but the appellate court dismissed because there was no final order. Finally, the Attorney General moved to file the amended complaint instanter or, alternatively, for a final order of dismissal. The circuit court dismissed the cause of action for want of equity, and an appeal to the appellate court followed.

The defendants now argue that the Attorney General could not appeal for various procedural reasons. First, they suggest that the circuit court did not abuse its discretion in refusing to allow the Attorney General to file his amended complaint instanter. We need not, under the circumstances presented here, determine whether the trial judge abused his discretion in denying the Attorney General leave to file the amended complaint instanter. In view of our conclusion that the trial court erroneously held that the original complaint failed to state a cause of action, an amended complaint was unnecessary. But, upon remand, the Attorney General should be allowed to file an amended complaint if he desires.

The defendants next suggest that the Attorney General may not appeal the final order dismissing the cause of action because it was he who asked the circuit court to enter it. But the Attorney General cannot be faulted for obtaining the dismissal here. After the first complaint was dismissed and leave to amend was denied, the cause was left without an active complaint on file, a headless beast that could not be moved off dead center, clogging the court. Inaction was to the defendants’ benefit, and so only the Attorney General could be expected to suggest some action to the circuit court. This is not, after all, a case in which the dismissal was obtained as a ruse or to prejudice the defendant. Obtaining the final order of dismissal could truly be said to be a technicality necessary to move the case to its next stop in what has become a long and tortured path through the courts. We decline to hold the Attorney General’s conduct against him, for it was a sensible thing for him to do.

Next, the defendants suggest that the Attorney General’s unorthodox tactics stripped him of equity and that the final order of dismissal was proper for that reason alone. The defendants lay the blame for various trial and appellate court proceedings on the Attorney General, the result of which has been that 4?2 years after the complaint was filed this case is still not past the pleading stage. It cannot be denied that this case has been delayed by technicalities. But the only unorthodox action taken by the Attorney General was his attempt to short-circuit the long appellate process through the extraordinary writ of mandamus. Though unusual and ultimately unsuccessful, the ex parte attempt was within the Attorney General’s rights under the rules of this court (73 Ill. 2d R. 381). The courts remain open to all petitions addressed to them that are proper under the rules of procedure, even those that are, as in this case, unwise and improvident. The remaining maneuvers by the Attorney General in the trial court and especially in the appellate court were in response to the erroneous order holding that the original complaint failed to state a cause of action. The Attorney General’s action did not deprive him of the equity needed to seek relief on behalf of the People of the State under the Illinois Antitrust Act.

Finally, the defendants claim that the order dismissing the complaint for failure to state a cause of action is not properly before this court because the Attorney General did not stand on his complaint when given leave to file an amended complaint. The appellate court held that the attempt to obtain a writ of mandamus reversing the circuit court’s order, coupled with a failure to file amendments within the time allotted, constituted an election sufficient to raise the issue of the sufficiency of the complaint on appeal. That reasoning is sound.

The circuit court erred in dismissing the complaint and the appellate court erred in affirming the dismissal, and both judgments are reversed. The cause is remanded for further proceedings.

Reversed and remanded.


author:
CHIEF JUSTICE GOLDENHERSH
      JUSTICE SIMON,

text:
    (No. 54544.
    DONALD PETERS et al., Appellees, v. THE HEALTH AND HOSPITALS GOVERNING COMMISSION et al., Appellants.

      Opinion filed December 18, 1981.

    Rehearing denied January 29, 1982.

    SIMON, J., dissenting.

      Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. George A. Higgins and Joseph M. Wosik, Judges, presiding.
    Richard M. Daley, State’s Attorney (Jane Clark Casey, Deputy State’s Attorney, and John A. Dienner III and Roman L. Sukley, Assistant State’s Attorneys, of counsel), for appellants.
    Lester Asher, Marvin Gittler, and Joel A. D’Alba (Asher, Goodstein, Pavalon, Gittler, Greenfield, and Segall, Ltd., of Chicago, of counsel), for appellees.
   CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, as officers and representatives of two unions, representing the employees of hospitals under the control of defendant, the board of commissioners of Cook County (Board), brought this action in the circuit court of Cook County against the Board and its members seeking specific performance of two election agreements entered into by the Board’s predecessor, the Health and Hospitals Governing Commission of Cook County (Commission). The circuit court allowed defendants’ motions to dismiss the actions. Plaintiffs appealed, the appellate court reversed (91 Ill. App. 3d 1104), and we granted leave to appeal. The facts are adequately set forth in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues.

In two “election agreements” executed by the Commission and the unions represented by plaintiffs it was agreed that secret-ballot elections would be held to determine whether a majority of the employees in designated units at defendants’ hospitals wished to be represented by a union. The first of these agreements was executed in 1971, and apparently several bargaining agreements were subsequently entered into between that union and the Commission. The agreement with the second union was entered into in 1979, and no bargaining agreement was ever entered into as the result of that election. Under the provisions of section 10 of the County Hospitals Act (Ill. Rev. Stat., 1980 Supp., ch. 34, par. 5020), effective November 30, 1979, the Board took over the operation of the hospitals. Section 10 in pertinent part provides: “[a]ll rights, duties and obligations of the Commission shall become the rights, duties and obligations of the Board of Commissioners.”

In reversing the judgments of the circuit court dismissing the actions the appellate court held that the contracts were not terminable at will and that the agreements were enforceable against the Board. It held that the statute transferring jurisdiction over the county hospitals from the Commission to the Board effected the transfer of the Commission’s obligations under these election agreements.

This record presents no question of the enforcement of specific contractual provisions concerning wages, hours, conditions of employment, or which disputes may properly be submitted to arbitration. The relief sought by plaintiffs in these actions is that the Board be ordered “to bargain in good faith concerning wages, hours and working conditions” of certain of its employees and “to submit all unresolved negotiation issues to an impartial fact finder.” The narrow question presented is whether, because section 10 of the County Hospitals Act provides that the duties and obligations of the Commission shall become the duties and obligations of the Board, the defendants can be required to negotiate in accordance with the prayer of the complaints.

Although much of the appellate court opinion was devoted to determining whether the election agreements were of perpetual duration and therefore terminable at will, or whether they contained ascertainable points of termination, we do not reach these issues. If the agreements are construed to be of perpetual duration, they were terminable at will and defendants were free to terminate them. Assuming, arguendo, that the provisions for termination upon the unions’ loss of majority representation of the employees constituted an ascertainable point of termination so as to preclude construing the agreements to be of perpetual duration, we are of the opinion that the agreements are nevertheless unenforceable.

The agreements imposed upon the Commission only the duty to bargain in good faith. The only intended result of such bargaining is the execution of an agreement covering the compensation, benefits and working conditions of the affected employees. Whether its source is the Constitution (Ill. Const. 1970, art. VII), the Cook County commissioners’ act (Ill. Rev. Stat. 1979, ch. 34, par. 909) or the County Hospitals Act, the power to fix compensation, benefits and working conditions requires the exercise of the Board’s discretion.

This court has held that a public body may not delegate a discretionary public responsibility with which it is charged. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412; Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470; Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127.) Although the courts have enforced collective bargaining agreements within the scope of those limitations, we find no authority in statutory or case law which supports the position that a public body can be ordered to negotiate such an agreement. Indeed, under the National Labor Relations Act, a State or local governmental entity has the unequivocal right to refuse to enter into a collective bargaining agreement with its employees.

For the reasons stated the judgment of the appellate court is reversed and the judgments of the circuit court are affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON,

dissenting:

I dissent for the reasons stated by the appellate court as well as the reasons stated in my dissent in Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, and add the following.

The Health and Hospitals Governing Commission, in agreeing to bargain with the unions, did not surrender its discretion to set the terms of employment. No terms would become effective until the Commission approved them, and the Commission did not have to agree to anything not to its satisfaction. If bargaining broke down, the Commission was free to do as it pleased. There was no more delegation of a public duty (here the Commission’s duty to exercise discretion to set the terms of employment) than there was in the recent case of Metropolitan Sanitary District v. Village of Romeoville (1981), 86 Ill. 2d 213. There, this court upheld a contract by which the sanitary district promised to perform Romeoville’s legal duty to maintain a bridge. One way for Romeoville to discharge that duty was to have the sanitary district do it for them. If the sanitary district failed to maintain the bridge properly, Romeoville would have to do so itself; the contract did not absolve it of its duty to the public to maintain the bridge; but it was a proper way of arranging a method by which that duty would be fulfilled. Likewise, the hospitals commission’s contracts did not divest it of its duty or ability to exercise discretion, but simply established a procedure, collective bargaining, for the preliminary task of generating a proposal. Littleton Education Association v. Arapahoe County School District, No. 6 (1976), 191 Colo. 411, 553 P.2d 793.

The County Hospitals Governing Commission Act provided:

“The Commission oeo may contract with one or more responsible public or non-profit corporations, hospitals, or health care facilities * * ° for the operation of any hospital and for the provision of any 000 health 600 services which the county eoe may be required or authorized by law to provide, and the Commission may contract for any other service for the convenience of its operations as it may deem advisable.” (Ill. Rev. Stat. 1977, ch. 34, par. 5022.)

In view of this statutory invitation for the Commission to farm out practically all its functions, I believe the undertaking in the contract to bargain collectively with hospital employees, with the Commission retaining ultimate discretion and control, was within the Commission’s power and not against public policy. The contract was valid, and the county board, as successor to the hospitals commission, is bound by it under the County Hospitals Act of 1979, which provided a clear transfer of “[a]ll rights, duties and obligations” of the Commission to the Board (Ill. Rev. Stat., 1980 Supp., ch. 34, par. 5020).