text:
    (No. 53951.
    ROY W. GREEN, Jr., Appellee, v. ADVANCE ROSS ELECTRONICS CORPORATION et al., Appellants (Roy W. Green, Sr., Appellee).

      Opinion filed September 30, 1981.

    Rehearing denied November 25, 1981.

      Patrick W. O’Brien and Gary T. Johnson, of Chicago (Mayer, Brown & Platt, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hob an 8c Fuller, of Chicago (William J. Holloway, Thomas L. Browne, and Stephen R. Swofford, of counsel), for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the' court:

This appeal involves the application of that part of the Illinois long-arm statute which relates to commission of tortious acts within this State (Ill. Rev. Stat. 1977, ch. 110, par. 17(l)(b)). To be resolved is whether a corporation incorporated or headquartered in Illinois can, in an action claiming breaches of fiduciary duty, gain jurisdiction over a Texas resident who once served it as president and later as a consultant when all of the Texan’s corporate responsibilities, including the acts which allegedly injured the corporation, were performed outside Illinois. The principal position of the parties seeking to assert Illinois jurisdiction is that an out-of-State resident submits to the jurisdiction of Illinois courts when he commits a tort which causes a diminution of the funds of a corporation organized or headquartered in Illinois.

Roy W. Green, Sr., the counterdefendant, sold his business in Texas to Advance Ross Corporation (Advance Ross), a Delaware corporation with headquarters in Illinois, in 1970. Upon the sale, he became president of Advance Ross Steel Corporation (Steel), a Texas corporation, the subsidiary of Advance Ross which took over his business. He also became president of another Advance Ross subsidiary, Advance Ross Electronics Corporation (Electronics), incorporated in Illinois. In addition, he became a director of Advance Ross. The businesses and activities in which Steel and Electronics engaged were entirely outside Illinois.

In 1975, Advance Ross replaced Green, Sr., as president of its two subsidiaries with his son, Roy W. Green, Jr., and the service of Green, Sr., as a director of the parent corporation was terminated. From that time until 1978, Green, Sr., served as a consultant for Steel. Advance Ross and Electronics both claim that as a consultant Green, Sr., continued to control significant operations of both of the companies he formerly headed. They contend he exercised influence both directly and through his son. In a deposition, Green, Jr., testified that his father, during his employment as a consultant by Steel, would decide what bidders would be selected to receive contracts from Steel and Electronics and that his father had complete control of all construction being done by these companies.

In 1978, the Advance Ross president directed Green, Jr., to discontinue his father’s employment as a consultant. Green, Jr., complied with that order, but upon discharging his father he paid him $26,500, the equivalent of six months’ salary, out of Steel corporate funds as “severance” pay. When the president of Advance Ross learned of the payment, he ordered Green, Jr., to return it to the corporation; and when Green, Jr., refused, he too was discharged.

Green, Jr., then brought an action in the circuit court of Cook County against Electronics alleging his employment contract had been breached. He included as a defendant in his Cook County action the parent corporation, Advance Ross, because that corporation had guaranteed all amounts payable by Electronics under the employment contract. Green, Sr., was not a participant in that suit. Electronics and Advance Ross (hereinafter referred to as defendants) then counterclaimed against Green, Jr., and also moved to join Green, Sr., as an additional counterdefendant, claiming that Green, Sr., directly, and as a co-conspirator with his son during the son’s employment by Steel and Electronics, had misappropriated corporate assets and improperly converted them to his own use. The alleged misappropriations and conversion consisted of: improperly charging defendants for personal expenses of Green, Sr.; using defendants’ employees to perform personal work for Green, Sr., on defendants’ time; using defendants’ premises and facilities for personal work for Green, Sr., without payment to defendants for such use; receipt of an improper gift by Green, Sr., in the form of the $26,500 severance pay by check drawn on the Steel account in a Longview, Texas, bank; receipt of improper salary payments by Green, Sr., in a month when he received disability pay from defendants’ disability insurer; entering on behalf of defendants into an improper retainer agreement with a Texas law firm in which a son of Green, Sr., was a partner and which represented Green, Sr., at the time the firm represented defendants.

Green, Sr., filed a special and limited appearance to contest jurisdiction in Illinois over his person. The circuit court denied the defendants’ motion to join Green, Sr., as an additional party; the appellate court affirmed (87 Ill. App. 3d 279). This court granted leave to appeal under Rule 315 (73 Ill. 2d R. 315).

There is no dispute that the acts and conduct for which defendants seek to hold Green, Sr., responsible all occurred in Texas. He has not been present in Dlinois or had any contact with Illinois residents since at least 1975. There is no suggestion by defendants that any visits Green, Sr., might have made to Illinois before 1975 were related in any way to the conduct complained of in their counterclaim.

The substantive matter with which this appeal is concerned is a Texas dispute. It arises out of an employment relationship performed in Texas, and out of alleged misappropriations, diversions of corporate assets and breaches of fiduciary obligations to the defendants, all of which took place outside Illinois. There is no suggestion that Green, Sr., improperly drew funds out of any Illinois account on which he was a signatory or that he embezzled or converted any funds or other property located in Illinois. All cash payments made to Green, Sr., or for his account were by checks drawn upon the Texas bank account. This account was funded from time to time by checks drawn on defendants’ accounts in Illinois.

Although the counterclaim alleges long-arm jurisdiction based on both section 17(1) (a) of the Civil Practice Act, which relates to jurisdiction arising from the transaction of any business within Illinois, and section 17(l)(b), the defendants argue in this court only for jurisdiction based on the latter section. As the defendants assert long-arm jurisdiction solely on the ground that Green, Sr., committed a tortious act within this State, there is no occasion to consider any other possible basis for jurisdiction. Section 17(1) (b) provides:

“(l)Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person 000 to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(b) The commission of a tortious act within this State.” Ill. Rev. Stat. 1977, ch. 110, par. 17(1) (b).

In Nelson v. Miller (1957), 11 Ill. 2d 378, 389, this court said that the Illinois long-arm statute reflects a conscious purpose to assert jurisdiction over nonresidents to the extent permitted by the due process clause. We do not, however, regard this observation as the equivalent of declaring that the construction and application of section 17(1) (b) depend entirely upon decisions determining in what circumstances due process requirements would permit long-arm jurisdiction. Neither do we read Nelson to say that in applying section 17(1) (b) we should not construe the meaning and intent of our own statute irrespective of the due process limitations generally applicable to State long-arm statutes. A statute worded in the way ours is should have a fixed meaning without regard to changing concepts of due process, except, of course, that an interpretation which renders the statute unconstitutional should be avoided, if possible. Thus, instead of turning to the array of tests which have been articulated to assist in determining whether long-arm statutes as applied exceed permissible constitutional boundaries, we prefer to resolve this appeal by looking to the meaning of our own statute. We determine first whether it should be construed in a way which embraces defendants’ claim against Green, Sr. If the answer is in the negative, as we conclude it is, applying the tests the Supreme Court has fashioned in the following decisions to determine whether the assertion of jurisdiction by a State over a nonresident is prohibited by due process safeguards is unnecessary: See Rush v. Savchuk (1980), 444 U.S. 320, 62 L. Ed. 2d 516, 100 S. Ct. 571; World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559; Kulko v. Superior Court (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690; Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569; Hanson v. Denckla (1958), 357 U.S. 235,2 L. Ed. 2d 1283, 78 S. Ct. 1228; McGee v. International Life Insurance Co. (1957), 355 U.S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199; International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154.

As in Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 435, for the purpose of disposing of the propriety of long-arm jurisdiction there is no dispute that tortious acts were committed. To be resolved is whether their commission was “within this State” as those words are used in section 17(1) (b).

The view was adopted in Nelson that the requirements of section 17(b) are met “when the defendant, personally or through an agent, is the author of acts or omissions within the State, and when the complaint states a cause of action in tort arising from such conduct.” (11 Ill. 2d 378, 393.) The defendant’s agent in Nelson was physically present in Illinois when the plaintiff was injured. But, physical presence is not necessary for the commission of a tortious act within this State; in Gray, for example, the defendant was never physically present in Illinois. Long-arm jurisidiction was upheld, however, in Gray when a water heater manufactured outside Illinois exploded in Illinois and injured plaintiff because of a defective valve provided to the manufacturer by defendant outside Illinois and incorporated into the heater. The court, relying on the Restatement of Conflict of Laws § 377 (1934), reasoned that the place of a wrong is where the last event takes place which is necessary to render the actor liable. (22 Ill. 2d 432, 435.) The last event in Gray was in Illinois, where the injury to the plaintiff occurred, for to be tortious the act alleged in Gray had to cause injury. (See also Honeywell, Inc. v. Metz Apparatewerke (7th Cir. 1975), 509 F.2d 1137, 1142.) While Nelson urged that in applying the long-arm statute the substantial elements of convenience and justice for the situs be given paramount consideration, we must give heed to the injunction of the statute that where, as in Gray, all of the conduct complained of took place outside Illinois, at least the injury must have been suffered in Illinois.

Defendants’ theory is that although the misconduct of Green, Sr., took place outside Illinois, the consequences of his misconduct were felt in Illinois. They assert an Illinois connection because their Texas operations, including Steel’s bank account in Longview, Texas, were funded from corporate assets lodged in Illinois; they thus contend that the misconduct alleged resulted in a drain upon those assets in Illinois. But the consequences upon which defendants rely are too remote from the misconduct of Green, Sr., to support the conclusion that the tortious acts complained of were committed in Illinois. The situs of the last event whose happening was necessary to hold Green, Sr., liable was in Texas. It was there that the alleged improper severance payment was made and the misappropriation and conversion of the labor of corporate employees and use of corporate premises occurred. It was also the place where the alleged improper expenses were charged and the legal retainer agreement entered into. The tortious acts, if any, and the losses or injury were complete when they occurred in Texas. That, therefore, was the place of the wrongs; their commission cannot reasonably or justifiably be transferred to Illinois by the rationale that their consequence reduced the amount of corporate assets in this State.

The defendants’ view is that a financial tort must be looked upon from a different perspective than a physical injury; in the case of the former type of loss, defendants argue jurisdiction is placed at the injured party’s business headquarters for it is there that the reduction of assets resulting from the fraudulent conduct is eventually felt. The first weakness in this approach is that courts construing section 17(1) (b) have not found reason to differentiate between physical and economic injury. (See Bodines, Inc. v. Sunny-O, Inc. (N.D. Ill. 1980), 494 F. Supp. 1279, 1282.) The second and more pronounced weakness is that this theory opens the gates of long-arm jurisdiction to every Illinois resident who incurs loss as the result of the fraud of a nonresident, no matter how distant the misconduct and circumstances of the loss are from Illinois. A less tenuous and contrived connection between the tortious act and this State is required to satisfy the statutory provision that its commission be within Illinois. See World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 299, 62 L. Ed. 2d 490, 502, 100 S. Ct. 559, 568, where the court concluded that the possibility that Volkswagen cars sold outside Oklahoma might be used in Oklahoma was “far too attenuated a contact” to justify that State asserting jurisdiction.

If defendants’ approach is sound, it is difficult to understand how its application can be restricted to financial torts. It would seem equally logical to permit anyone who sustains physical injuries anywhere to institute his action in Illinois if he resides and maintains a bank account here which is diminished by payment of medical bills. To permit no-holds-barred long-arm jursidiction of that type, even if contemplated by a State statute, would not pass muster under the due process requirements applicable to long-arm jurisdiction.

Finally, acceptance of the theory of long-arm jurisdiction advanced by defendants would be tantamount to permitting a corporation operating nationwide to sue employees, suppliers, customers and perhaps others, at the company’s State of incorporation or at its headquarters no matter how far away they lived and worked or their contact with the corporation was. Any interpretation of the Illinois long-arm statute which would permit that result is neither fair nor wise as a matter of policy. The meaning defendants ask us to give the words “within this State” takes us too easily out of this State to be acceptable. Dealing by a Texas resident with an Illinois corporation only in Texas is too remote from Illinois to regard any part of the action as occurring in Illinois.

Green, Jr., is obviously subject to Illinois jurisdiction— he chose it. But, no matter how much more convenient and economical it may be to adjudicate defendants’ counterclaim against him and their similar claim against his father in the same action in Illinois, Green, Sr., cannot be brought under the authority of Illinois courts unless that result is warranted under section 17(1) (b). The connection of Green, Jr., with Illinois is not attributable to his father (see Rush v. Savchuk (1980), 444 U.S. 320, 332, 62 L. Ed. 2d 516, 527, 100 S. Ct. 571, 579), and the connection of one counterdefendant with Illinois cannot be attributed to another simply because they have a common interest.

Finally, the plaintiffs contend they have properly caught Green, Sr., in Illinois because of his son’s presence here and their charge that father and son conspired to commit the misappropriations and conversions alleged. This is not a sufficient basis for bringing Green, Sr., to this State under the long-arm statute. It fails because it blurs over the reason Green, Jr., is subject to Illinois jurisdiction. He was not brought here under a long-arm statute; he chose to come here to sue the defendants. The fact that Green, Jr., is subject to Illinois jurisdiction does not indicate that any of the tortious acts he is charged with performing in concert with his father satisfy the requirement of the long-arm statute.

It is not true that if one conspirator is subject to Illinois jurisdiction so are all the others. Rather, the theory of jurisdiction based on the acts of a co-conspirator must be that co-conspirators are each others’ agents; thus the argument would be that when a conspirator commits a tortious act within Illinois he does so as agent for his co-conspirators, who thereby also become subject to this State’s jurisdiction. But Green, Jr., committed no tortious acts within the State, any more than his father did. And, he did not file his action in Illinois as agent for his father; his lawsuit was not part of any conspiracy.

The idea of jurisdiction based on the acts of co-conspirators has been questioned. (Chromium Industries, Inc. v. Mirror Polishing & Plating Co. (N.D. Ill. 1978), 448 F. Supp. 544, 552.) But even if long-arm jurisdiction over conspirators may be established in some cases, it has no application to this case.

We find no support in the record in this case for requiring Green, Sr., to respond to defendants in Illinois. The judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (Nos. 53550, 53561 cons.
    THE NORTHERN TRUST COMPANY, Trustee, Appellant, v. SYLVIA TARRE et al. (Sylvia Tarre et al., Appellants; Leonard Kaplan et al., Appellees).

      Opinion filed September 30, 1981.

    Rehearing denied November 25, 1981.

      Barnard & Barnard, of Chicago (Morton John Barnard, of counsel), for appellant Northern Trust Co.
    Daniel M. Schuyler and Edgar D. Ballard, Jr., of Schuyler, Ballard & Cowen, of Chicago, for appellants Sylvia Tarre et al.

    John F. McCarthy, Esther R. Rothstein, and Robert Lee Shapiro, of Chicago (McCarthy and Levin, of counsel), for appellees Leonard Kaplan et al.

    Edward T. Joyce and Steven J. Rotunno, of Chicago (Edward T. Joyce, Ltd., of counsel), for appellee Joseph Tarre.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The Northern Trust Company filed suit in the circuit court of Cook County seeking instructions as to the proper distribution of assets held on behalf of Harry and Fannie Kaplan, deceased settlors under a trust agreement executed by them and naming Northern as trustee. Joined as defendants were Leonard Kaplan and Sylvia Tarre (the settlors’ children); Raymond Kaplan and Linda Kaplan Beatus (son and daughter of Leonard); Mark Tarre and Laurel Tarre Goodman (son and daughter of Sylvia); and Joseph Tarre (the minor son of Mark Tarre), all beneficiaries under the trust. The controversy centered around the validity of an amendment executed by Harry Kaplan following the death of his wife. The trial court found the amendment to be a valid exercise of the powers reserved by the settlors. However, the appellate court held that the trust agreement was executed pursuant to a contract between the settlors, and that Harry’s amendment was executed in violation of this contract and was consequently invalid. (83 Ill. App. 3d 684, 691.) The judgment of the trial court was reversed and the cause remanded with directions. The Northern Trust Company as well as the Tarre defendants petitioned this court for leave to appeal. We granted both petitions and consolidated the cases in this court.

On August 26, 1969, Harry and Fannie Kaplan entered into a trust agreement whereby the settlors transferred various property to Northern under the terms and provisions of a document entitled “Trust Agreement, Trust No. 35458.” The trust agreement is quite comprehensive (34 pages) and is broken down into 10 separate “articles,” each containing several numbered paragraphs. Articles I and II of the document are designated “Trust A” and “Trust B,” respectively. The preamble to the agreement states that Harry is conveying his interest in certain specified property into Trust A, while Fannie is conveying her interest in certain property into Trust B. Substantially identical provisions in articles I and II describe how the property in the respective trusts is to be managed, how the income is to be distributed to the respective settlors during their lifetimes, and the power of the trustee to invade the principal for limited purposes. Both articles contain payout provisions directing disbursement of one-half of the value of the respective trust assets (after certain deductions) upon the death of the settlor. The payment is to be made to the surviving settlor’s trust, but only if that settlor survives the death of the other by 180 days. In no event is the payout to diminish the trust of the decedent to a value of less than $75,000. Both articles also provide that the income generated by the residue in the deceased settlor’s trust is to be paid to the survivor for life.

Article III sets out the distribution scheme to be employed upon the death of the surviving settlor. It directs that after payment of certain expenses outlined in both article I and article II, as well as a specific devise of $5,000 from Trust B to Fannie’s nephew, the trustee shall commingle the assets of the two trusts and make a distribution. The thrust of article Ill’s distribution plan is that, if Sylvia is then alive, $100,000 of the commingled Trusts A and B is to be held in “Trust C” for her benefit as provided in article IV. The residue of the commingled trusts is then to be split with one-half going to Leonard and the other half (or the entire residue if Leonard is not alive) divided among the settlors’ grandchildren, Raymond and Linda Kaplan, and Mark and Laurel Tarre, with alternate distribution provisions operating in the event of a deceased grandchild. Article III also describes alternative gifts which are to take effect if Sylvia does not survive the settlors as well as a gift of $5,000 to the Northwest Home for the Aged.

Article IV is designated “Trust C” and sets out the income and distribution scheme to be employed with respect to Trust C assets. Articles V through X contain various provisions regarding alternative distributions, the rights and duties of the trustee, as well as other general administrative matters not immediately relevant to this appeal. The agreement is signed by both settlors and a representative of Northern Trust Company. Appended to the trust agreement and bearing the title “Trust No. 36468” are two documents listing the property transferred by each settlor. The two schedules are identical in every respect except for the name of the transferor.

Paragraph 1.5 of article I (Harry’s trust — Trust A) and paragraph 2.5 of article II (Fannie’s trust — Trust B) contain identical provisions reserving certain powers to the settlors of Trust A and B, respectively. Those paragraphs provide:

“By written instrument executed by Harry [Fannie] and delivered to the trustee during his [her] lifetime, Harry [Fannie] may at any time and from time to time (a) withdraw or dispose of such portions of the principal or any asset of Trust A [B] as he [she] may direct; (b) direct the trustee as to the purchase, sale, mortgage, pledge or other disposition of assets of Trust A [B], irrespective of the risk involved, but the sole responsibility for and risk of any such action in accordance with any such direction shall be Harry’s [Fannie’s], and neither the trustee nor any successor trustee shall be liable or responsible or assume any risk whatsoever for any action taken or omitted in accordanee with any such direction; or (c) revoke or amend this agreement as to Trust A [B], but no amendment affecting or limiting the trustee’s powers, duties or discretions shall be made without its consent.” (Emphasis added.)

Fannie died on April 12, 1976, not having exercised her power to amend the agreement during her lifetime. At the time of her death, the net value of Trust B was $110,868.87. Pursuant to the trust agreement, $75,000 was held in her Trust B and the excess paid over to Trust A. On May 26, 1976, Harry executed an amendment to Trust A in which he continued the gift of $5,000 to the Northwest Home for the Aged, which had been provided for in article III of the original trust agreement. However, he deleted certain provisions of the agreement noted below and provided that the remaining Trust A assets, upon Harry’s death, be held in Trust A and be administered for the benefit of Sylvia and, at her death, be distributed to her children.

The document executed by Harry is entitled “AMENDMENT TO THE HARRY M. KAPLAN TRUST A, TRUST NO. 36468” and contains 10 numbered paragraphs, the first 5 of which alter specific provisions of article I to provide the gifts described above. Paragraph 6 of the amendment states, “ARTICLES III, IV and V are deleted from this Trust A.” Paragraphs 7, 8 and 9 of the amendment modify articles VI and VII of the original agreement and adopt the Trusts and Trustees Act (Ill. Rev. Stat. 1975, ch. 148, par. 101 et seq.) as applicable to Trust A. Paragraph 10 states that, in all other respects, articles VI through X remain unchanged.

The obvious purpose of the amendment is to extend the life of Trust A beyond Harry’s death, thereby escaping the commingling and distribution provisions of article III of the original agreement. This amendment, if valid, would adversely affect the amount of the distribution to which Leonard and the Kaplan grandchildren would be entitled under the original agreement.

At the time of Harry’s death, the gross value of his trust (Trust A) was $164,744.60. Of this amount, $30,868.67 had been received from Fannie’s Trust B following her death. After Harry’s death, pursuant to the trust agreement, Northern paid out $14,200.90 in expenses, claims and the distribution to Northwest Home for the Aged. The balance remaining in Harry’s Trust A is $150,543.70. Had the trust agreement not been amended, this amount and the $75,000 remaining in Fannie’s Trust B would have been commingled pursuant to article III of the original agreement, and would have totaled $225,543.70. Of this amount, $100,000 would have been transferred to Trust C for Sylvia (settlors’ daughter) and $5,000 would have been distributed under article III to the Northwest Home for the Aged. The balance of $120,543.70 would have been distributed one-half to Leonard (settlors’ son), and the other one-half would have been divided equally and distributed to the four grandchildren of the settlors (two grandchildren are the children of Leonard and two are the children of Sylvia).

In response to Northern’s complaint for construction of the trust agreement, the Kaplan defendants (Leonard and his children) did not contest the validity of the amendment, but requested that the $75,000 remaining in Trust B be distributed one-half to Leonard and one-eighth to each of the four grandchildren. Later, the Kaplan defendants filed an amended answer in which it was alleged that the original agreement was a joint and mutual agreement between Harry and Fannie and since Harry had received the benefits of the agreement following Fannie’s death, he could not amend his trust. It was alleged that the amendment was therefore of no effect. The amended answer filed by the Kaplan defendants, in the alternative, alleged that the $75,000 should be distributed to Leonard and his children. As a second alternative the amended answer prays that the $75,000 be distributed as intestate property.

The trial court held the amendment valid. The $150,543.70 balance in Harry’s Trust A was therefore directed to be held for the benefit of Sylvia. The court directed the trustee to pay from the $75,000 remaining in Trust B the attorney fees for the parties and directed that the balance be held under Trust C as provided in article IV of the original agreement. Sylvia, under that article, is the beneficiary of Trust C.

In the appellate court, the Tarre defendants (Sylvia and her children) objected to the award of attorney fees to the Kaplan defendants. The Kaplan defendants, in turn, contended that the attorney fees should not have been payable solely from the $75,000 in Trust B. The appellate court held it was proper to allow attorney fees to the Kaplan defendants. No issue concerning attorney fees has been raised in this court.

The appellate court found that the evidence established a contract between Harry and Fannie to dispose of their property according to a common plan. In reaching that conclusion, the court looked to the law concerning joint and mutual wills (see Helms v. Darmstatter (1966), 34 Ill. 2d 295, 300-01) and held that the mutual agreement or contract was enforceable. This result required the commingling of Trust A and Trust B and the disposition of the commingled funds as directed in article III of the original agreement. The result of this holding was to render the amendment of Harry’s Trust A inoperative. The appellate court acknowledged that there were apparently no Illinois cases applying the joint and mutual will contract concept to trusts. In reaching its conclusion, it relied heavily, however, on a Kansas case, Reznik v. McKee (1975), 216 Kan. 659, 534 P.2d 243, which applied this principle of law to trusts. The appellate court also did not think that the reservation by the settlors of the power to amend or revoke their respective trusts manifested an intent that the original agreement should not constitute a binding contract to dispose of the property according to the common plan set forth therein.

By discussing Reznik we express no opinion as to whether, under proper circumstances, the law relating to joint and mutual wills is applicable to trusts. That decision must await another day and a proper case. We simply hold that that law is not applicable under the facts of this case. These facts differ substantially from those present in Reznik, which led the Supreme Court of Kansas to hold that two separate trust agreements, executed by the husband and wife individually, could not be amended or revoked by the survivor of them. In Reznik, each trust agreement specifically stated that certain heirs were being omitted from its distribution scheme because of provisions made by the other spouse. The husband’s trust stated:

“Settlor makes no provision for distributions for the primary benefit of Settlor’s children for the reason that he has previously made provision for them by gifts of stock and otherwise, and also for the reason that Settlors wife has made ample provision for such children.” (Emphasis in Reznik.) (Reznik v. McKee (1975), 216 Kan. 659, 663, 534 P.2d 243, 248.)

A similar provision in the wife’s trust recited:

“Settlor make[s] no provision for the distributions for the primary benefit of Settlor’s grandchildren for the reason that Settlor’s husband has made ample provision for such grandchildren.” (Emphasis in Reznik.) (Reznik v. McKee (1975), 216 Kan. 659, 663, 534 P.2d 243, 248.)

In addition, the preamble to each trust document stated that the settlor was “joined” in the execution by the spouse, who in both cases, consented to and “executed” the agreement. These and other factors indicative of the settlor’s true intentions, the court held, rendered the survivor’s trust irrevocable and not subject to modification notwithstanding an express reservation in each document of the power “to alter, amend or revoke.” The Kansas court concluded that the husband had executed his trust pursuant to a contract with his wife and that his attempt to alter its provision after her death gave rise to a claim against his estate. Reznik v. McKee (1975), 216 Kan. 659, 673, 534 P.2d 243, 255.

Although the original agreement in this case constituted a comprehensive estate plan, there is nothing in that agreement which expressly or impliedly creates a contractual arrangement beween Harry and Fannie that the disposition may not be altered. Unlike Reznik, in our case the other provisions of the trust agreement do not conflict with the power reserved to revoke or amend. We recognize that where the language of an agreement is ambiguous a court may look beyond the document to ascertain the sense in which the parties used particular terms. (Continental Illinois National Bank & Trust Co. v. Art Institute (1951), 409 Ill. 481, 489; Olson v. Rossetter (1948), 399 Ill. 232, 241.) The rules of construction which apply to the interpretation of contracts apply to the construction of trust instruments as well. The object of judicial construction in this regard is to determine the intent of the parties and to carry it out, but it is not the function of a court to modify the document or create new terms different from those to which the parties have agreed. American Rubber & Plastic Corp. v. First National Rank (1971), 50 Ill. 2d 172, 174; United States Trust Co. v. Jones (1953), 414 Ill. 265, 270; Olson v. Rossetter (1948), 399 Ill. 232, 238.

In order to find a “contract” not to alter the provisions for the disposition in the trust agreement, it would be necessary to read into that agreement conditions it does not contain, and which are contrary to the express language of the instrument and its clear intent. The original instrument reserved to both settlors the power to “revoke or amend this agreement as to” their respective trusts. Nothing in the agreement limits the exercise of this power or indicates that the power may be exercised only during the time that both settlors are living. Also, the agreement does not require the consent of one settlor to the exercise of the power by the other. The reservation of the power is unrestricted. We must conclude that the reservation of this unrestricted power was agreed to by both the settlors, since the provisions were included in the executed trust agreement and both settlors reserved these powers. We cannot view these provisions as mere “boiler plate” language as the Kaplan defendants imply. Rather, the reservation of the power to revoke or amend appears to be an essential part of an estate plan designed to take maximum advantage of the marital deduction provisions for Federal estate tax purposes. The provisions of the agreement concerning the transfer of assets from one trust to another upon the death of a settlor make several references to the adjusted gross estate as finally determined for Federal estate tax purposes and the marital deduction with reference to the Federal estate tax.

This carefully drafted plan, to qualify for the Federal estate tax marital deduction, would not achieve its intended purpose if the agreement were to prohibit the survivor from revoking or amending the trust after the death of the other settlor. In cases involving joint wills or mutual wills, which were held to be irrevocable because of an agreement between the husband and wife, the effect of such an agreement has been held to deny the estate the benefit of the marital deduction. (See Estate of Opal v. Commissioner (2d Cir. 1971), 450 F.2d 1085; Batterton v. United States (5th Cir. 1968), 406 F.2d 247.) By way of contrast to these cases, in Dekker v. United States (S.D. Ill. 1965), 245 F. Supp. 255, the husband and wife had executed a joint will giving all the property to the survivor and anything that was left upon the death of the survivor was to go to their children. The court held that the will did not indicate an intent to create a contractual disposition of the property and that the survivor had an absolute interest under the will. By virtue of the absence of a binding contractual disposition, the court held that the estate qualified for the marital deduction. We conclude that the original trust agreement did not constitute a contractual arrangement between the settlors which would restrict the right of the survivor in the exercise of the reserved power to revoke or amend the agreement as to his trust. Harry’s amendment providing for the continuation of Trust A for the benefit of Sylvia is therefore valid and enforceable.

We also do not agree with the alternate contention of the Kaplan defendants as to the disposition of the $75,000 remaining in Trust B. In the amended answer the Kaplan defendants alleged that in the event Harry’s amended Trust A is valid, the $75,000 remaining in Trust B should be distributed to Leonard and his children. In this court, however, they argue that $75,000 should be distributed to Leonard and the four grandchildren, including two of Sylvia’s children. This is the provision which is contained in the original agreement for the distribution of the commingled assets of Trust A and Trust B remaining after the payment of certain expenses and after setting over $100,000 for Trust C for Sylvia. To accomplish this result the Kaplan defendants urge this court to eliminate Trust C from the trust agreement entirely. We have held that Harry could validly amend Trust A, removing its property from the operation of article III. This then leaves as the only trust assets subject to the provisions of article III the $75,000 remaining in Trust B. Under the provisions of the original agreement, this amount is to be transferred to Trust C. We conclude that the disposition ordered by the trial court of the $75,000 remaining in Trust B is the correct disposition to be made of that property.

Article III of the original agreement does not become inoperative simply because Harry has removed the assets of Trust A from its operation. This is the basis for our holding on the last contention above. It is also the reason we hold that the $75,000 should not pass as intestate property, which is an alternate contention of the Kaplan defendants. The trust agreement specifically provides for the distribution of the assets remaining in Trust B. There is no reason to declare that they should pass as intestate property.

For the reasons herein stated, the judgment of the appellate court is reversed and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE WARD

text:
    (No. 54301.
    THE PEOPLE ex rel. ADOLPHO HERNANDEZ, Appellee, v. RICHARD J. ELROD, Sheriff, Appellant.

      Opinion filed September 30, 1981.

    Rehearing denied November 25, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr and Iris E. Sholder, Assistant State’s Attorneys, of counsel), for the People.
    McCoy & Morris, of Chicago (Steven J. McCoy and Gilbert C. Schumm, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The Governor of Illinois on July 14, 1978, issued a warrant ordering that the relator, Adolpho Hernandez, be arrested and given to the custody of an agent of the State of Massachusetts for extradition. In the warrant, the Governor recited that he had been presented with a copy of an indictment, certified by the Governor of Massachusetts, which charged that Hernandez, a resident of Chicago, had committed the crime of unlawful distribution of heroin. The warrant also recited that a request for his extradition by the Governor of Massachusetts had been made. Following his arrest, Hernandez filed in the circuit court of Cook County a petition for a writ of habeas corpus and a motion to quash the Governor’s warrant. The ground then of his challenge to extradition was his claim that he was not in Massachusetts on July 14, 1975, when the crime was allegedly committed. He further contended that he had been irreparably prejudiced by the 11-month delay in the return of the indictment. Both the petition and the motion were denied, and extradition was ordered. The appellate court reversed (89 Ill. App. 3d 849) on the ground that the court was unable to determine whether the Governor’s warrant properly issued, as there was no certified copy of the indictment in the record on appeal. Another ground for reversal was that an affidavit introduced by the State charging the commission by the relator of a crime in Massachusetts (introducing the affidavit being an alternative to introducing a copy of an indictment) had not been executed before a magistrate as the Uniform Criminal Extradition Act requires (Ill. Rev. Stat. 1977, ch. 60, par. 20). We granted the State’s petition for leave to appeal (73 Ill. 2d R. 315(a)).

The State does not dispute that the affidavit introduced was not made before a magistrate and therefore should not have been admitted. The State does contend, however, that the appellate court, on the record here, should have affirmed the trial court’s denial of the motion to quash and the petition for a writ of habeas corpus, though a certified copy of the indictment did not appear in the record on appeal.

Authority for extradition of a person charged with a crime in the demanding State is found under article IV, section 2, of the Constitution of the United States (U.S. Const., art. IV, §2). This article, and Federal legislation (18 U.S.C. §3182 (1976)) have been held to govern interstate extradition, but States may supplement Federal regulation as long as there is no attempt to impose more stringent requirements for extradition. (See State ex rel. Sieloff v. Golz (1977), 80 Wis. 2d 225, 258 N.W.2d 700; People ex rel. Matochik v. Baker (1953), 306 N.Y. 32, 114 N.E.2d 194; People ex rel. Dimas v. Shimp (1980), 83 Ill. App. 3d 150.) To facilitate interstate extradition procedures, most States, including Illinois, have adopted the Uniform Criminal Extradition Act. Section 3 of the Illinois statute provides that when a demanding State seeks extradition of a person in Illinois, the request shall not be recognized unless the written demand alleges that “the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state.” The demand must be “accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand.” Ill. Rev. Stat. 1977, ch. 60, par. 20.

When the relator appealed to the appellate court neither a copy of the indictment nor the Governor’s warrant was included in the record for appeal. After this court granted the State’s petition for leave to appeal, the State moved to supplement the record with the certified copy of the indictment. This motion was denied, but we did allow the State’s motion to supplement the record by filing the Governor’s warrant. This warrant issued by the Governor of Illinois contains the following recital:

“The Governor of the State of Massachusetts demands the arrest and delivery of Adolpho Hernandez as a fugitive from justice, and has produced and laid before me a copy of an indictment, certified as authentic by the said Governor and duly authenticated, and charging the said Adolpho Hernandez with having committed on the 14th day of July, A.D. 1975, in the County of Worcester, in the said State of Massachusetts, the crime of unlawful distribution of heroin, which the said Governor certifies to be a crime under the laws of said State of Massachusetts 00°.”

This court has made it clear that where “the Governor’s warrant certifies that *** [the relator] is charged with crime in the demanding State by an indictment [this representation] is sufficient to make out a prima facie case showing that the issuance of the warrant by the Governor of this State was legal and justified and that detention of the [relator] on the authority of the warrant by the sheriff is legal.” (People ex rel. Stevens v. Meyering (1932), 349 Ill. 198, 199, citing People ex rel. Lejcar v. Meyering (1931), 345 Ill. 449; People ex rel. Stanton v. Meyering (1931), 345 Ill. 598; Lacondra v. Hermann (1931), 343 Ill. 608.) This prima facie case for extradition may be overcome only by proof to the contrary. People ex rel. Lacanski v. Backes (1960), 19 Ill. 2d 541, 544. See also Waterman v. Deyton (1974), 233 Ga. 243, 210 S.E.2d 765; Hughes v. Waters (1973 Iowa), 204 N.W.2d 599; Mote v. Koch (1970), 173 Colo. 82, 476 P.2d 255; Wade v. Lovellette (1968), 251 Ind. 97, 239 N.E.2d 585.

A review of the record of proceedings and of the pleadings filed by Hernandez shows that at no time before the trial court did he challenge the existence of the indictment relied upon by the Governor when he issued his warrant for the arrest and extradition of the relator. In fact, one of the grounds of his motion for quashing the warrant was that he had been prejudiced by the delay in returning the indictment. Beyond that, there are numerous references by the relator’s attorney in the record to the indictment. In one, where the attorney complained of the delay in returning the indictment, he stated: “Judge, the motion is asking this court to quash the Governor’s warrant on the basis that the indictment, the supporting documents, which were sent by the demanding state to the asylum state, contain an indictment which on its face would show that the alleged offense took place July 14th, 1975, and that the indictment for this offense was returned in November of 1976.” Too, referring to the “supporting documents,” he said later that he was “not asking the court to inquire behind the papers supporting the Governor’s warrant.”

It was not contradicted that a certified copy of the defendant’s indictment was presented to the Governor of Illinois. The Governor stated unequivocally in his warrant that a copy of the indictment was “produced and laid before me.” That the relator had been indicted and that a copy of the indictment had been given the Governor was not questioned in the trial court. The transcript of the proceeding in the circuit court shows that if the copy was not physically before the court and given to the relator it certainly was available to him.

As we observed above, this court has held that the Governor’s warrant certifying that a relator is under indictment in the demanding State makes out a prima facie case. The relator here failed to overcome it by proof to the contrary. Too, he waived the question of having a certified copy of the indictment made a part of the record on appeal.

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

Appellate court reversed; circuit court affirmed.

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


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 54251.
    THE PEOPLE ex rel. RICHARD M. DALEY, State’s Attorney, Petitioner, v. JOHN J. LIMPERIS, Judge, et al., Respondents.

      Opinion filed September 30, 1981.

    Rehearing denied November 25, 1981.

      Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Lawrence T. Krulewich, Michael E. Shabat, and Joan S. Cherry, Assistant State’s Attorneys, of counsel), for the People.
    Sam Adam, of Chicago, for respondent Frank B. Machala.
    James J. Doherty, Public Defender, of Chicago (John Thomas Moran, Assistant Public Defender, of counsel), for respondent Robert Mals.
    Edward M. Genson and Jeffrey B. Steinback, of Chicago (Hugh Stevens, of counsel), for respondent Paul Draper.
    Onesto, Giglio & Associates, of Chicago (Anthony J. Onesto and Joseph M. Giglio, of counsel), for respondent Douglas Davis.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Pursuant to Supreme Court Rule 381 (73 Ill. 2d R. 381), we allowed the motion of Richard M. Daley, State’s Attorney of Cook County (hereafter petitioner), for leave to file an original action for mandamus. The petition seeks the issuance of writs of mandamus to Judge John J. Limperis, now retired, and Judge Frank B. Machala (hereafter respondents), both of the circuit court of Cook County, directing that they “expunge their orders of October 3, 1980, August 1,1980, and April 8,1980, sentencing 099 Douglas A. Davis, Robert Mals, and Paul Draper [hereafter defendants], to terms of probation where the stipulated evidence demonstrated that each defendant had committed a Class X non-probational felony by delivering well over 30 grams of a substance containing cocaine.” Petitioner further prays that respondents be required to resentence defendants to terms of imprisonment of between 6 and 30 years as required by statute.

Defendant Douglas Davis was charged in count I of a multicount information with delivery of more than 30 grams of a substance containing cocaine, and in count VI of the same information with conspiracy to deliver a controlled substance. The remaining counts are not pertinent in this action. In a bench trial a police officer testified that defendant Davis delivered to him four plastic bags containing white powder. It was stipulated that these bags were transported to a police laboratory, maintaining a proper chain of custody, that the contents were there analyzed and that a forensic scientist would testify that the bags held 173 grams of a substance containing cocaine. In closing argument defense counsel asserted that defendant Davis was merely a go-between and requested the court to find him guilty of the lesser included offense of delivery of less than 30 grams. The circuit court found defendant guilty of delivery of less than 30 grams, a Class 2 felony, and sentenced him to four years’ probation and six months’ periodic imprisonment.

Defendant Robert Mals was charged in count I of a two-count information with delivery, on March 13,1979, of less than 30 grams of a substance containing cocaine, and in count II with delivery, on March 28, 1979, of more than 30 grams. The defendant pleaded guilty to count I. At a bench trial on the second count, a police officer testified that on March 13, 1979, he had purchased approximately two grams of cocaine from defendant. Defendant later introduced the officer to an individual named Charles Hardt, who ultimately delivered to the officer four plastic packets containing a white powder. Defendant Mals was present when the packets were produced but not at the time they were delivered and paid for. It was stipulated that the packets were submitted to a crime laboratory, maintaining a proper chain of custody, and that the contents were there analyzed by a person who would testify that the bags held approximately 110.6 grams of a substance containing cocaine. Defense counsel argued that defendant Mals did not know the sale upon which count II was based was going to take place and was therefore not guilty. With respect to count II, the trial court found defendant Mals guilty of delivery of less than 30 grams of a substance containing cocaine and sentenced him to 30 months’ probation.

Defendant Paul Draper was charged in count I of a three-count indictment with delivery of less than 30 grams of a substance containing cocaine, in count II with delivery of more than 30 grams of a substance containing cocaine, and in count III with possession of less than 30 grams of a substance containing cocaine. At a bench trial, a police officer testified that on July 12, 1978, defendant Draper delivered to him a package containing a white powdery substance which defendant represented to be approximately a half ounce of cocaine. He also testified that on July 19, 1978, defendant Draper delivered to him a bag containing what purported to be approximately 116.5 grams of cocaine. Defendant Draper was then arrested, and an additional quantity of a white powdery substance was discovered in defendant’s apartment. The parties stipulated that the substances so acquired were delivered to a crime laboratory, maintaining a proper chain of custody, and that they were examined by a forensic scientist who would testify that the alleged cocaine purchased on July 12, 1978, consisted of 13.8 grams of a substance containing cocaine, that purchased on July 19, 1978 — the delivery upon which count II was based — consisted of Ill.2 grams of a substance containing cocaine, and that discovered on the premises consisted of 10.9 grams of a substance containing cocaine. The circuit court found defendant Draper guilty as charged in counts I and III. On count II defendant was found guilty of delivery of less than 30 grams of a substance containing cocaine. He was sentenced to 30 months’ probation and ordered to pay a fine of $5,000.

Petitioner contends that mandamus is the proper remedy because the respondents were without authority to reduce the charged offenses and impose sentences applicable to lesser crimes. Petitioner argues that “[s]ince each defendant admitted at trial that the quantity of the substance containing cocaine involved in the illegal transaction in which he engaged was over 30 grams, the Respondent judges, upon finding each defendant guilty of illegal delivery, had no alternative but to enter a finding that the defendant was guilty, as charged, of delivery of more than 30 grams of a substance containing cocaine, a non-probationable Class X felony.” He asserts that respondents’ actions are attempts to circumvent the mandate of the General Assembly regarding the punishment of defendants found guilty of delivery of more than 30 grams of a substance containing cocaine.

Defendants and respondents contend that mandamus will not lie for the reason that the respondent judges were vested with discretion to make determinations of fact upon which their judgments were based and that the exercise of such discretion may not be reviewed by mandamus. Defendants contend that the convictions on the included offenses served to acquit them of the greater offenses and that further prosecution of the charges, or any attempt to increase the degree of the offenses, violates the double jeopardy clauses of both the Federal and State constitutions. In support of his contentions petitioner cites the legislative declaration of intent contained in the Illinois Controlled Substances Act:

“It is the intent of the General Assembly, recognizing the rising incidence in the abuse of drugs and other dangerous substances and its resultant damage to the peace, health, and welfare of the citizens of Illinois, to provide a system of control over the distribution and use of controlled substances which will more effectively: *t*M> (3) penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society; 900.
It is not the intent of the General Assembly to treat the unlawful user or occasional petty distributor of controlled substances with the same severity as the large-scale, unlawful purveyors and traffickers of controlled substances. To this end, guidelines have been provided, along with a wide latitude in sentencing discretion, to enable the sentencing court to order penalties in each case which are appropriate for the purposes of this Act.” Ill. Rev. Stat. 1979, ch. 561/2, par. 1100.

Under the Act, cocaine is classified as a Schedule II narcotic drug. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1206.) Article IV of the Act prescribes the penalties which attach to specified violations. Section 401 provides in part:

“Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this Section with respect to:
(a) the following controlled substances and amounts, notwithstanding any of the provisions of subsections (b), (c), (d), or (e) to the contrary, is guilty of a Class X felony. 000
(2) 30 grams or more of any substance containing cocaine;
# « «
(b) any other amount of a controlled substance classified in Schedules I or II which is a narcotic drug is guilty of a Class 2 felony.” Ill. Rev. Stat. 1979, ch. 56/2, par. 1401.

A defendant convicted of a Class X felony is required to be sentenced to a term of imprisonment of not less than 6 years nor more than 30 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(3)), and cannot be given probation (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(c)(2)(C)).

We agree with petitioner that People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, People ex rel. Hanrahan v. Wilson (1971), 48 Ill. 2d 30, and People ex rel. Ward v. Salter (1963), 28 Ill. 2d 612, leave no question that the sentencing provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.) are mandatory and mandamus will lie to compel compliance with them. The situations here, however, are distinguishable in that in those cases the courts did not impose the proper sentences for the offenses of which the defendants were convicted. Here, although each of the defendants was charged with delivery of more than 30 grams of a substance containing cocaine, the respondents, after the presentation of evidence, made no finding of guilty on that charge. In each case the defendant was found guilty of the offense of delivery of less than 30 grams of a substance containing cocaine. It is a well-established principle of our jurisprudence that conviction of a lesser offense operates as an acquittal of a greater offense. (See, e.g., People v. Gray (1977), 69 Ill. 2d 44, 51; People v. Newman (1935), 360 Ill. 226, 232; People v. Carrico (1923), 310 Ill. 543, 545.) Thus, the effect of the judgment in each case was to acquit on the charge of delivery of more than 30 grams of a substance containing cocaine.

Initially, we observe that the 1970 Illinois Constitution prohibits appeals in criminal cases from a judgment of acquittal. (Ill. Const. 1970, art. VI, §6.) The People are precluded from taking an appeal, and we have repeatedly held that mandamus may not be employed as a substitute for a direct appeal. (See, e.g., Lara v. Schneider (1979), 75 Ill. 2d 63, 64; People ex rel. Adamowski v. Dougherty (1960), 19 Ill. 2d 393, 400.) Petitioner contends that this action does not constitute an attempt to appeal from acquittal because the findings and sentences entered by respondents were entered without authority, were therefore invalid, and are a proper subject for mandamus. The substance of petitioner’s contention is that respondents did not “do that which the law required them to do, enter findings and sentences based upon the evidence before them.” Petitioner’s assertion is, in other words, that the actions of respondents — which we have determined to be acquittals — are contrary to the evidence. Petitioner may not accomplish by way of mandamus that which the Constitution specifically provides may not be done by appeal. Compare Sanabria v. United States (1978), 437 U.S. 54, 68-69, 57 L. Ed. 2d 43, 56-57, 98 S. Ct. 2170, 2181.

Responding to respondent’s contentions, petitioner, citing United States v. DiFrancesco (1980), 449 U.S. 117, 66 L. Ed. 2d 328, 101 S. Ct. 426, contends that the double jeopardy clauses of the Federal and Illinois constitutions (Ill. Const. 1970, art. I, § 10; U.S. Const., amends. V, XIV) are not offended “where there is no threat of successive prosecution,” and that no such threat exists in this case because defendants need not be retried. DiFrancesco presented the question whether section 3576 of the Organized Crime Control Act of 1970 (18 U.S.C. §3576), which permits the United States to appeal the sentence imposed upon a “dangerous special offender,” violated the double jeopardy clause. Although the Supreme Court held section 3576 to be valid, petitioner reads DiFrancesco far too broadly. That case is distinguishable on what is perhaps the most critical fact. DiFrancesco was convicted of the charged offense and the government disputed only his sentence. Defendants here were not convicted of the Class X offenses. The relief sought by the government in DiFrancesco differed substantially from that sought by petitioner here. Moreover, petitioner ignores the Supreme Court’s repeated differentiation of sentences and acquittal; indeed, the court’s holding turned on the conclusion that “a sentence does not have the qualities of constitutional finality that attend an acquittal.” 449 U.S. 117, 134, 66 L. Ed. 2d 328, 344, 101 S. Ct. 426, 436.

Petitioner’s contention that the double jeopardy clause will not be offended because no retrial after an acquittal is sought also misses the point of DiFrancesco. Citing Fong Foo v. United States (1962), 369 U.S. 141, 143, 7 L. Ed. 2d 629, 631, 82 S. Ct. 671, 672, the court was careful to point out in DiFrancesco that the double jeopardy clause prohibits further prosecution even where an acquittal is “based upon an egregiously erroneous foundation.” (449 U.S. 117, 129, 66 L. Ed. 2d 328, 341, 101 S. Ct. 426, 433.) An acquittal of the sort referred to in DiFrancesco is “a resolution, correct or not, of some or all of the factual elements of the offense charged.” (United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1355; see also Sanabria v. United States (1978), 437 U.S. 54, 71, 57 L. Ed. 2d 43, 58, 98 S. Ct. 2170, 2182-83.) Here, petitioner contends in essence that the respondents’ actions were contrary to the evidence, which is to say that the respondents resolved at lease some of the factual elements of the charged offenses incorrecdy. In asking that we correct the erroneous resolutions arrived at by respondents, petitioner is seeking to retry defendants as surely as would be the case if petitioner sought to compel respondents to preside over new trials. We conclude that issuance of writs of mandamus would violate Federal and Illinois constitutional guarantees against double jeopardy.

We do not imply by this decision that we approve of the manner in which respondents dealt with these cases. In view of the stipulations concerning the quantities of the substances delivered we perceive no basis for the findings of deliveries of lesser amounts. Our holding that there is a constitutional impediment to review of these judgments, which appear to be based upon “an egregiously erroneous foundation,” is not to be employed as a device to preclude scrutiny of acquittals intended to circumvent statutory directives. See also State ex rel. Sawyer v. O’Connor (1978), 54 Ohio St. 2d 380, 377 N.E.2d 494.

For the reasons stated the writs of mandamus are denied.

Writs denied.

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


author: MR. JUSTICE SIMON MR. JUSTICE UNDERWOOD,

text:
    (No. 53334.
    THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. CHICAGO TEACHERS UNION, LOCAL NO. 1, et al., Appellees.

      Opinion filed September 30, 1981.

    Rehearing denied November 25, 1981.

      Michael J. Murray, of Chicago (Richard E. Girard and John E. Wren, of counsel), for appellant.
    Lawrence A. Poltrock, of Chicago (Dejong, Poltrock & Giampietro, of counsel), for appellees.
   MR. JUSTICE SIMON

delivered the opinion of the court:

On April 16, 1974, a Chicago public elementary school teacher was viciously beaten by an unknown assailant. The assault occurred during school hours in the hall outside the teacher’s classroom while she was bringing her students back from the lunchroom. She was hospitalized and unable to return to her teaching duties until September 1, 1976.

At the time of the assault article 44 — 8 of the collective bargaining agreement in effect between the Chicago board of education and the Chicago Teachers Union provided:

“Teachers or other bargaining unit members whose absences result from school-related assault shall be paid full salary and medical expenses by the Board and no deduction shall be made from sick leave.”

Pursuant to this article the union filed a grievance on the teacher’s behalf several weeks after the assault. After some negotiation the board agreed to pay her full salary for the remainder of the 1973-74 school year. But when school reconvened in September 1974 for the 1974-75 school year, the teacher did not receive her regular pay checks. The union filed a second grievance on October 29,1974, which eventually became the subject of this appeal. The union and the teacher requested that she be paid her full salary; the board refused and the grievance proceeded through the regular grievance channels.

Meanwhile, on April 7, 1975, the teacher filed a claim under the workers’ compensation statute. After a hearing and an appeal to the Industrial Commission, she was awarded $17,361.22 for disability and medical expenses. The award was confirmed by the circuit court of Cook County, and the board agreed, on August 25, 1976, to pay the Industrial Commission’s award.

The union had demanded that the grievance go to arbitration, as was its right under the collective bargaining agreement, but the board refused to participate in the selection of an arbitrator under the procedures established by the agreement. The union then selected an arbitrator under the procedure provided for by the agreement, without the board participating. On February 8,1977, the union and the teacher, the defendants herein, appeared before the arbitrator and presented evidence. The board, although notified of the hearing, was not represented, but it later filed a brief with the arbitrator. On August 30, 1977, the arbitrator found for the teacher and awarded her $34,936.10, an amount equal to her unpaid salary for the school years 1974-75 and 1975-76.

On November 23, 1977, the board filed a complaint in the circuit court of Cook County to vacate the arbitrator’s award, as authorized by the Uniform Arbitration Act (Ill. Rev. Stat. 1977, ch. 10, par. 112). On the defendants’ motion, the court struck and dismissed the board’s complaint and confirmed the arbitrator’s award in full. The appellate court confirmed the decision (82 Ill. App. 3d 354), and this court granted leave to appeal (73 Ill. 2d R. 315).

The circuit court’s role when asked to vacate or confirm an arbitrator’s award is limited. When the award is made pursuant to a collective bargaining agreement, the court is directed to look to the common law grounds for vacating an arbitration award that were in effect before the enactment of the Uniform Arbitration Act. (Ill. Rev. Stat. 1977, ch. 10, par. 112(e).) Those grounds were set out in an exhaustive analysis of the common law in White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 601-10. They are fraud, corruption, partiality, misconduct, mistake, or failure to submit the question to arbitration. In the present case there is no suggestion that the arbitrator committed fraud, was corrupt or partial or engaged in any form of misconduct. The only grounds on which the arbitrator’s award could have been vacated by the circuit court, then, were mistake or a failure to submit the issue to the arbitrator.

The latter ground is similar to jurisdiction. The arbitrator’s power is taken only from the agreement, and the scope of that power must be defined by the agreement. The collective bargaining agreement here defines a complaint that the agreement has been violated as a grievance and refers grievances such as the present one through channels that can, upon the union’s request, result in a final, binding decision by an arbitrator. On its face, then, the issue appears to have properly been sent to arbitration.

The board, however, points to article 1 — 18 of the agreement, which provides:

“The terms of this Agreement shall not apply where inconsistent with constitutional, statutory or other legal provisions.***
“** No decision on or adjustment of a grievance shall be contrary to any provision of this Agreement.”

The board argues that recovery by the teacher under article 44 — 8 would be inconsistent with sections 5 and 11 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.5, 138.11). Article 1 — 18 would thus preclude an arbitrator from taking any grievance if the decision could be inconsistent with law. According to the board, any decision inconsistent with law is in violation of article 1 — 18, strips the arbitrator of jurisdiction, and can be challenged in the circuit court.

The board’s position is unpersuasive. Private agreements in addition to workers’ compensation schemes are common, and the cardinal principle in the enforceability of such agreements is that the contractual excess is not workers’ compensation.

“It performs the same functions, and is payable under the same general conditions, but legally it is nothing more than the fruit of a private agreement to pay a sum of money on specified conditions. The provisions of a compensation act may be incorporated into the agreement by reference, but the operative force and the ultimate legal character of the arrangement remain that of private contract.” 4 A. Larson, Workmen’s Compensation §97.53 (1981).

Article 44 — 8 did not mention the workers’ compensation statute, and appears to be simply an agreement for supplemental benefits for school employees subject to special dangers. While the Workmen’s Compensation Act bars collection of “common law or statutory right[s] to recover” other than under the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.5), the exclusive-remedy provision does not bar insurance-type benefits which are employer funded (Ill. Rev. Stat. 1977, ch. 48, par. 138.4(e)). Article 44 — 8 provides such a fringe benefit, analogous to sick leave, measured by the full salary the assaulted teacher would have earned, plus medical costs. The arbitrator’s decision that article 44 — 8 was consistent with existing law was reasonable.

The board protests that the teacher is enjoying a double recovery and that the parties who negotiated article 44 — 8 never intended that result. It presents transcripts to support this argument, but the transcripts are not conclusive, showing no agreement as to the meaning of article 44 — 8 other than in the plain language of the article itself. In addition, the transcripts are parol evidence, inadmissible to construe an unambiguous provision, and were never presented in the hearing before the arbitrator.

Besides, the Workmen’s Compensation Act provides in section 8(j) (Ill. Rev. Stat. 1977, eh. 48, par. 138.8(j)) for credits in cases of double recovery through compensation awards and private benefit plans. But the board did not assert its right to these credits, either before the Industrial Commission or the arbitrator. By not claiming these credits and showing it was entitled to them, the board waived whatever rights it had to them. Hill Freight Lines, Inc., v. Industrial Com. (1967), 36 Ill. 2d 419, 424.

The problem of security in urban schools is a familiar and serious one. It is obvious that there can be no education where there is no security for students, teachers or staff. Article 44 — 8, by providing double recovery, is a positive step in this area that recognizes reality and provides extraordinary measures for teachers victimized by schoolrelated violence. From the teacher’s point of view, double recovery protects teachers financially if they are assaulted and deters violence by encouraging the board to provide adequate security in order to conserve its own purse strings. From the board’s point of view double recovery is an inducement to teachers to put aside their fears and teach in schools which have gained a reputation for violence. In the light of these considerations, we cannot hold that the arbitrator’s interpretation of the collective bargaining agreement was so misguided that it must be vacated.

Although we believe that the arbitrator was correct in deciding that the Workmen’s Compensation Act and the collective bargaining agreement fit together consistently, his jurisdiction did not depend upon his correct interpretation of the law. Regardless of his interpretation of the Workmen’s Compensation Act, the arbitrator here was entrusted with the determination of how article 44 — 8 was to be applied to the teacher.

The court said in White Star that the parties had chosen the arbitrators to settle the questions of law which affected the contractual interpretation.

“The case was to be decided according to law, but the arbitrators, in the absence of an expressed intention to the contrary, were to be their own judges as to what the law was, otherwise the parties would have provided that the case would be subject to review by the courts or that the legal questions should be referred to some other tribunal for final determination.” (220 Ill. 578, 606.)

Even when the agreement explicitly required the decision of the arbitrator to be according to the law (not the case here), the language was not be construed as a limitation on the power of the arbitrator.

The only other ground for vacating the award was mistake. No mistake of fact was present; moreover, the arbitrator’s award could not be vacated by the circuit court if the arbitrator made a mistake of law by erring in his interpretation of the interplay between article 44 — 8 and the exclusiverecovery provision of the workers’ compensation statute. A court must construe an award, whenever possible, to uphold its validity. Errors of judgment in law are not grounds for vacating an arbitrator’s award when the interpretation of law is entrusted to the arbitrator. (Garver v. Ferguson (1979), 76 Ill. 2d 1, 10-11.) Only where it appears on the face of the award (and not in the arbitrator’s opinion) that the arbitrator was so mistaken as to the law that, if apprised of the mistake, the award would be different may a court review the legal reasoning used to reach the decision. (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 609.) An example would be if the arbitrator in this case considered an old version of the workers’ compensation statutes that had since been amended, unbeknownst to the arbitrator.

The reasonable interpretation of article 1 — 18 of the agreement is that the parties entrusted the interpretation of the law, as well as of the facts and the agreement, to the arbitrator. From the face of the award it does not appear that he made a mistake in choosing which laws to consider. Because the arbitrator’s decision was bargained for, the courts would have no business overruling the arbitrator’s interpretation even if they disagreed. United Steelworkers v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 599, 4 L. Ed. 2d 1424, 1429, 80 S. Ct. 1358, 1362, cited in Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 421.

The board, however, claims that the award must be vacated because article 44 — 8 of the agreement is unenforceable in view of the provision in the School Code that the board alone can fix salaries. Thus, the board contends, article 44 — 8 is an illegal delegation of the board’s powers. It is true that a board cannot delegate the fixing of salaries. (See Ill. Rev. Stat. 1977, eh. 122, pars. 34 — 16, 34 — 18; Lindblad v. Board of Education (1906), 221 Ill. 261, 271.) But that did not happen here. The board set the salaries of its teachers, including the teacher involved in this case. The salaries were published in the appendix to the collective bargaining agreement. The arbitrator merely determined that the teacher was eligible for the benefits of article 44 — 8, as measured by her salary. How much was not at issue, only whether the benefit was to be paid.

The board insists that there was an improper delegation of power because the arbitrator had to determine the teacher’s ability in her work to structure her award at the advanced salary level she was scheduled to achieve for the 1975-76 school year. The higher level would only have been paid, the board notes, if the teacher continued in the board’s employ, satisfying its competency requirements. But teaching ability, other than minimal competency (which the board does not dispute), was not at issue. The salary increase was determined in keeping with the teacher’s years of service. She was awarded the full salary which she would have received had she not been assaulted and injured, and that is the amount to which she was entitled. Speculation that she might have been dismissed or demoted had she been able to continue teaching has no place in the proper determination of an award under article 44 — 8. The arbitrator did not assume any nondelegable powers.

The circuit court properly refused to vacate the award. Its judgment confirming the award, and that of the appellate court, are affirmed.

Judgments affirmed.

MR. JUSTICE UNDERWOOD,

specially concurring:

I am not at all sure that I agree with everything said in the opinion of the court, particularly with reference to the double recovery by the teacher. However, because the board failed to raise that issue before the Commission or before the arbitrator, I agree that if is precluded from doing so here. Consequently, I concur in the judgment.


text:
    (No. 54545.
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, et al., Appellants, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Appellee.

      Opinion filed October 21, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and Dore & Clark, Ltd., Special Assistant Attorneys General, of Chicago (Cornelius F. Dore, William G. Clark, Jr., and llene M. Davidson, of counsel), for appellants.
    Henry L. Mason III and David W. Carpenter, of Sidley & Austin, of Chicago, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The Attorney General of Illinois filed a declaratory judgment action (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) in the circuit court of Cook County, charging that American Telephone and Telegraph Company (AT&T) has never filed a message tax return as required by “An Act in relation to a tax upon persons engaged in the business of transmitting messages” commonly called the Messages Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 467.1 et seq.). The suit sought a declaration by the court (1) that AT&T was a person engaged in the business of transmitting messages within Illinois; (2) that as such a person AT&T was liable to Illinois for a tax upon its gross receipts as provided by the Act; and (3) that AT&T must henceforth file messages tax returns and pay messages taxes, as well as file returns and pay taxes for all prior years “deemed appropriate.” The defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted was denied by the trial court, but was allowed following the filing by AT&T of a motion to reconsider. The Attorney General appealed to the appellate court, and we granted leave to transfer the appeal to this court pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)).

The Messages Tax Act is a self-assessment tax imposed upon the gross receipts of those persons engaged in the business of transmitting messages within the State. (Ill. Rev. Stat. 1979, ch. 120, par. 467.2.) It complements the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.) by imposing a tax on persons engaged in the business of providing message transmission “services” as opposed to those who “sell” personal property at retail. The Messages Tax Act incorporates by reference several of the provisions of the Retailers’ Occupation Tax Act (see Ill. Rev. Stat. 1979, ch. 120, par. 467.5), including section 5 of that act (Ill. Rev. Stat. 1979, ch. 120, par. 444). That section sets out in detail the steps to be taken and the procedure to be employed by both the Department of Revenue, as well as the taxpayer, in cases where no return is filed or a dispute arises as to the amount of tax owed. The section specifically states that in case any person fails to file a return, “the Department shall determine the amount of tax due from him according to its best judgment and information, which amount so fixed by the Department shall be prima facie correct and shall be prima facie evidence of the correctness of the amount of tax due, as shown in such determination.” (Ill. Rev. Stat. 1979, ch. 120, par. 444.) The section further provides that once this assessment becomes “final,” and after the time for review under the Administrative Review Act has passed (Ill. Rev. Stat. 1979, ch. 110, pars. 264, 267), the Department may file suit in the circuit court and reduce its assessment to a money judgment.

Although AT&T admits that it has not filed a messages tax return or paid a single dollar of messages tax for over 40 years, it maintains the failure to do so results from the fact that all of its revenues are derived from interstate services, which are exempt from taxation (Ill. Rev. Stat. 1979, ch. 120, par. 467.2). It argues that Illinois Bell Telephone Company is the subsidiary of AT&T which provides message services within Illinois and consequently pays messages taxes. AT&T argues that in the case at bar the Attorney General is improperly attempting to bypass the statutory scheme for the enforcement of the Act and challenge AT&T’s position directly in the circuit court instead of following the prescribed administrative procedure. In support of this contention, AT&T points out that the Department has never made an assessment of AT&T’s messages tax liability, and that no hearings have ever been held or any other action taken as required by statute as a prerequisite to the filing of a suit on behalf of the Department of Revenue. A preliminary audit of AT&T was begun in April of 1980, but was “suspended” in August of that year after the trial court dismissed the Attorney General’s complaint because the State had invoked its administrative remedy by commencing the audit.

The Attorney General, while seeking a declaration that AT&T is a taxpayer within the meaning of and subject to the Messages Tax Act, nonetheless, contends that he need not follow the administrative procedures provided for enforcing the provisions of the Act. This action, as originally filed, was not brought in the name of the Director of the Department of Revenue, although the Department is vested with the authority and duty of enforcing and applying the Act. The action was brought in the name of the People of the State of Illinois ex rel. William J. Scott, Attorney General. The Director of the Department of Revenue was not made a party until the Attorney General so moved, in conjunction with his motion to vacate the trial court’s order of dismissal. No objection has been made to the standing of the Attorney General to maintain the action in this manner. It is the position of the Attorney General that he has the inherent authority to maintain this action on behalf of the People of this State and to seek a declaration that AT&T is a taxpayer under the Act. He argues that once such a judicial declaration has been made, the Department can then proceed administratively. He contends that it is more expeditious to have such a declaration before resorting to administrative determinations. He argues that this action was filed in the interests of judicial economy and that the threshold question is whether AT&T is a taxpayer under the Act, and that this question can be determined in this proceeding.

In almost all cases dealing with the questions before us it has been the taxpayer who has sought judicial relief in tax matters, instead of following the administrative provisions of the statute. It is well established that, in cases which seek to avoid the statutory procedures relating to the assessment and collection of taxes, relief by way of declaratory judgment should not be afforded in a tax case that did not merit relief in chancery by way of injunction. (La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 322; People ex rel. Hamer v. Jones (1968), 39 Ill. 2d 360, 369; Goodyear Tire & Rubber Co. v. Tierney (1952), 411 Ill. 421, 431.) Although the existence of another remedy does not ordinarily preclude bringing an action for declaratory judgment, in revenue cases it is the rule, applying general equitable principles, that relief by way of declaratory judgment is not available if the statute provides an adequate remedy at law. La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 322; see Sta-Ru Corp. v. Mahin (1976), 64 Ill. 2d 330, 333.

In the trial court the doctrine of “primary jurisdiction” and the doctrine of “exhaustion of remedies” were argued, and references to those doctrines have been made in this court. The Attorney General argues that the doctrine of “primary jurisdiction” does not preclude judicial action in cases involving administrative agencies. That is, he contends, although the Messages Tax Act may vest primary jurisdiction in the Department of Revenue to assess and collect the messages tax, that fact does not preclude the court from determining, in a declaratory judgment action, that AT&T is a taxpayer. We cannot more clearly state the doctrine of “primary jurisdiction” and its distinction from the doctrine of “exhaustion of administrative remedies” than did the Supreme Court in United States v. Western Pacific R.R. Co. (1956), 352 U.S. 59, 63-64, 1 L. Ed. 2d 126, 132, 77 S. Ct. 161, 165, where the court stated:

“The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. ‘Exhaustion applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. ‘Primary jurisdiction,’ on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.” (Emphasis added.)

See generally 3 K. Davis, Administrative Law §§ 19.01 through 20.10, at 1-115 (1958), 1970 Supp. at 624-69, 1976 Supp. at 435-68, 1978 Supp. at 142-57; L. Jaffe, Judicial Control of Administrative Action 121-51, 424-58 (1965); see also Annot., 1 L. Ed. 2d 1596 (1957).

Under the previous holdings of this court cited above, an action for declaratory judgment can be maintained in revenue cases where the procedure for assessing and collecting taxes is specifically provided by statute only in situations where the party bringing the action does not have an adequate remedy at law. Therefore, in cases in which the statute does provide an adequate remedy at law, an action in such a case is not one cognizable in the first instance in the courts but is a matter properly maintained in the first instance by an administrative agency alone. Thus these tax cases fall within and are controlled by the doctrine of exhaustion of remedies and not the doctrine of primary jurisdiction as those two doctrines are defined and explained in the above authorities.

Also, article IX, section 1, of the 1970 Illinois Constitution vests in the General Assembly the exclusive power to raise revenue. This court has held that, by virtue of constitutional provisions, taxation is a legislative, and not a judicial function. (La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 323.) The legislature, in the exercise of this power, has provided in a detailed way for the assessment and collection of the messages tax (Ill. Rev. Stat. 1979, ch. 120, par. 467.1 et seq.), including a review of all final administrative decisions of the Department of Revenue by the courts under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). This court noted in Calderwood Corp. v. Mahin (1974), 57 Ill. 2d 216, the exclusive nature of such a right to review in revenue cases and held that the taxpayer could not enjoin the collection of taxes under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1969, ch. 120, par. 440 et seq.). The court held that the taxpayer was obliged to seek relief under the Administrative Review Act and that the taxpayer proceeded improperly when it sought injunctive relief. In our case we must view the action of the legislature, acting within its exclusive constitutional power to raise revenue, by enacting the Messages Tax Act, to have vested in the Department of Revenue alone the authority to administer the Act. The doctrine of exhaustion of administrative remedies thus precludes the bringing of the declaratory judgment action by the Attorney General.

In Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, the taxpayer, Illinois Bell Telephone Company, sought a declaratory judgment that certain of its revenues were exempt from the same tax we are considering in this case. In that case this court held that the exhaustion doctrine applied to proceedings under the Messages Tax Act. The court recognized that the doctrine, if strictly applied, could sometimes produce inequitable results and noted that exceptions have been recognized where an ordinance or statute is attacked as unconstitutional in its entirety (Bright v. City of Evanston (1956), 10 Ill. 2d 178); where multiple remedies exist before the same zoning board and at least one has been exhausted (Herman v. Village of Hillside (1958), 15 Ill. 2d 396); or where irreparable harm will result from further pursuit of administrative remedies (Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31). A further exception was noted in Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, 88, which stated that a party will not be required to exhaust his administrative remedy when it would be patently useless to do so.

The Attorney General does not argue that any of these exceptions are applicable to this proceeding. Instead, as noted above, he urges that the court should determine the threshold question of whether or not AT&T is a taxpayer within the meaning of the Act before proceeding with the administrative determination of the tax. However, by following the procedure set out in the Act, the Department of Revenue, on behalf of the People of this State, can secure a determination that AT&T is a taxpayer subject to the Act, and a judicial review of the administrative determination of that question can be had as provided in the Act through the Administrative Review Act. It may be that, by first obtaining a declaratory judgment, the proceedings would be substantially shortened. However, we are not in a position to make that determination. In any event, as salutary as this result may seem, it should not be allowed to circumvent or avoid a statutory proceeding which provides an administrative means of making such a determination. This procedure would oust the Department of Revenue from the jurisdiction conferred upon it by statute.

In Illinois Bell Telephone Co. v. Allphin, this court stated that its ruling requiring the exhaustion of administrative remedies, including review under the Administrative Review Act, except in the situations noted, was in furtherance of the legislative goal evidenced by the adoption of the Administrative Review Act. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 359.) We likewise believe requiring the procedure specified in the Messages Tax Act to be followed, excluding declaratory judgment by either the taxpayer or the State, except in the instances noted in Illinois Bell Telephone Co. and Northwestern University, to be in furtherance of the legislative goals evidenced by the adoption of the Messages Tax Act. It must be kept in mind that the legislature, in enacting the Act, was exercising authority exclusively granted to it by the Constitution.

The same argument of expediency now made by the Attorney General could be made by anyone the Department claims is a taxpayer and against whom it threatens to make an assessment. Under Illinois Bell Telephone Co. v. Allphin, such a person could not seek or obtain a preliminary declaratory judgment that he was or was not a taxpayer before submitting to the statutory administrative procedures for making such a determination and the assessment of a tax. The declaratory judgment remedy should likewise not be available to the State.

For the reasons herein expressed, we hold that the order of the circuit court of Cook County dismissing the plaintiff’s complaint for declaratory judgment and entering judgment for the defendant AT&T was not erroneous.

Judgment affirmed.

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