text:
    (No. 55567.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ONE 1979 PONTIAC GRAND PRIX AUTOMOBILE et al., Appellees.

      Opinion filed March 29, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gary F. Gnidovec, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    J. Scott Swaim, of Swaim & Swaim, of Kankakee, for appellee Allison Bridegroom.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

This case involves a challenge to the constitutionality of section 4—107(i) of the anti-theft article of the Illinois Vehicle Code. (Ill. Rev. Stat. 1979, ch. 95½, par. 4—107(i).) The statute provides that an automobile which has the manufacturer’s identification number removed, altered, defaced or destroyed may be seized and, if the true manufacturer’s identification number cannot be identified, the automobile shall be considered contraband. The statute states that a person owning, leasing or possessing the automobile has no property rights in the vehicle. The issue raised in this appeal is whether the seizure and subsequent sale of an automobile having a defaced or destroyed vehicle identification number violates the due process rights of an innocent purchaser having no knowledge of the altered number where the original vehicle identification number cannot be determined and the original owner cannot be ascertained.

The essential facts are undisputed. On September 15, 1979, Allison Bridegroom purchased a 1979 Pontiac Grand Prix from Celeste Motors in Kankakee, Illinois. At the time of purchase, he obtained from the dealer a bill of sale and title. The title carried the vehicle identification number 2J37Y9A117004 which matched the vehicle identification number on the dashboard of the automobile. Bridegroom paid Celeste Motors $5,000 for the vehicle.

In January 1980, a representative of the Secretary of State’s office and the city of Kankakee police department confiscated the vehicle from Bridegroom declaring it to be contraband. They informed him that the vehicle identification number on the Grand Prix was a false identification number, belonging to a car registered in Texas, and that the confidential vehicle identification number had been so badly mutilated that it was impossible to determine the true vehicle identification number. As a result, under section 4 — 107(i) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95½, par. 4—107(i)) the vehicle was considered contraband, to be disposed of in accordance with the provisions of that code, and the proceeds were to go to the city of Kankakee pursuant to section 4—211 (Ill. Rev. Stat. 1979, ch. 95½, par. 4-211).

In May 1980, the State’s Attorney of Kankakee County filed a complaint for an order to sell the automobile. It was an in rem proceeding; the vehicle itself was made a party defendant. Bridegroom was not made a party to the proceedings and no process or notice was served on him.

In June 1980 Bridegroom was allowed to intervene and filed a motion to strike. After a hearing, the trial court denied Bridegroom’s motion to strike, finding section 4—107(i) of the Illinois Vehicle Code to be constitutional, and entered an order allowing the State to affix a new vehicle identification number on the automobile and the city to sell it.

On appeal to the appellate court, Bridegroom raised two issues: (1) whether section 4 —107(i) is unconstitutional as applied in the instant case as a violation of Bridegroom’s due process rights, and (2) whether Bridegroom, as a bona fide purchaser for value, has paramount rights of ownership against the State, the city and the unidentifiable true owner. The appellate court reversed the decision of the circuit court on the ground that the statute’s classification of any automobile without an identifiable vehicle identification number as contraband per se is unconstitutional. (98 Ill. App. 3d 841.) The State then brought an appeal as a matter of right pursuant to Supreme Court Rule 317. 73 Ill. 2d R. 317.

The provision in question is part of a general statutory scheme entitled “Anti-Theft Laws.” (See People v. Searle (1981), 86 Ill. 2d 385, 388.) In addition to providing for the seizure of a vehicle with a removed, altered, defaced or destroyed manufacturer’s identification number, the statute also makes possession of such a vehicle a misdemeanor (Ill. Rev. Stat. 1979, ch. 95½, par. 4—102) and knowing possession of such a vehicle a felony (Ill. Rev. Stat. 1979, ch. 95½, par. 4—103).

Illinois has long ■ had such a statutory scheme, the broad purpose of which is to protect automobile owners against theft and to protect the general public against the commission = of crimes involving stolen automobiles. People v. Billardello (1925), 319 Ill. 124, 125-26.) The State argues in this appeal that the specific purpose of the seizure provision is to put a damper on the marketability and profitability of selling stolen vehicles by placing responsibility for verifying the validity of the vehicle identification number on the dealer and on the buyer. Presumably, more care will be taken in the future in the buying and selling of automobiles when the consequence of an improper number is summary seizure and disposition.

Although the issue of the constitutionality of this specific section is raised for the first time in this case, this court has previously addressed related issues in prior cases. In People v. Gale (1930), 339 Ill. 162, a prior statutory provision which allowed the trial court, upon demand of any person claiming to be the true owner of a seized vehicle having an altered number, to determine the question of ownership of the vehicle and order the car released, without notice to any party in interest, was found to be unconstitutional. (People v. Gale (1930), 339 Ill. 2d 162, 168-69.) However, the aspect of the statute making it an offense to have possession of an automobile bearing an altered, defaced or destroyed identification number has been upheld as a valid exercise of the police power. People v. Johnson (1919), 288 Ill. 442; People v. Billardello (1925), 319 Ill. 124.

In the instant case, the effect of section 4—107(i) is to strip the possessor of all rights to the automobile by declaring the automobile to be contraband even though the purchaser is completely innocent and had no way of discovering any wrongdoing, and although no other person’s rights were interfered with. Here, the vehicle identification number on the car title matched the vehicle identification number on the car on the dashboard in the front window. Bridegroom was not only unaware that the number was wrong; he had no means of discovering that information. The number that was obliterated is referred to as the secret or confidential number and was located somewhere on the frame at a place not known by the general public. Furthermore, the confidential identification number was so mutilated that it could not be identified so that there was no other identifiable owner to whom the vehicle could be returned. The vehicle was simply contraband per se. According to the State, under the statute, no further facts need be adduced, and accordingly no notice or hearing need be given to the possessor of the vehicle, in order for the court to order its sale. Ill. Rev. Stat. 1979, ch. 95½, par. 4—107(i).

To constitute a legitimate exercise of the police power, a legislative enactment must bear a reasonable relationship to the public interest intended to be protected, and the means adopted must be a reasonable method of accomplishing the desired objective. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 453; Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 327; DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 485.) Although there is a presumption of validity attached to the exercise of the State’s police power (Union Cemetery Association v. Cooper (1953), 414 Ill. 23, 32), on these facts, we feel compelled to agree with the determination of the appellate court that the classification of this automobile as contraband per se is unconstitutional.

While no one can deny that the twin goals of catching car thieves and deterring thefts are highly desirable, it does not appear that depriving the innocent purchaser of his property will further, either purpose. The State appears to argue that this effect, although harsh on an individual basis, will produce salutary results in the future by making the buyer and seller more careful and by removing the incentive to deal in cars with altered numbers, i.e., stolen cars. The State admits, however, that several confidential numbers may be located at different places on a vehicle of which the average buyer is unaware. This is a needlessly harsh and cruel way to accomplish the desired result. It is also indirect and of doubtful effectiveness. It would be more appropriate to prosecute the dealer who sold the car and who would have a means of ascertaining the location of the confidential or secret number. Under these facts any one of us can be victimized although we use every means known to us to be sure that the identification number matches that on the title.

Section 4—107(i) of the Illinois Vehicle Code speaks of “the” manufacturer’s identification number twice, of “a” identification number once and of “this” number once. Also, section 4—107(g) of the Code provides:

“During the usual course of business the manufacturer of any vehicles shall place an original manufacturer’s vehicle identification number on all such vehicles ***.” (Ill. Rev. Stat. 1979, ch. 95½, par. 4—107(g).)

Thus, the provisions of the statute speak in terms of there being one vehicle identification number located on a vehicle, not several concealed or “confidential” numbers located at various places on the vehicle unknown except to those who have access to certain publications. On recent model automobiles that number is located on the dash immediately behind the windshield on the left side of the vehicle and visible from the exterior. In fact, Federal regulations require this number to be located in that location and provide:

“The vehicle identification number *** for passenger cars *** shall be located inside the passenger compartment. They shall be readable, without moving any part of the vehicle, through the vehicle glazing under daylight lighting conditions by an observer *** whose eye-point is located outside the vehicle adjacent to the left windshield pillar.” (49 C.F.R. sec. 571.115(84.4) (1980).)

We must conclude that the vehicle identification number referred to in section 4—107 (i) is the vehicle identification number required by Federal regulations to be located in the position set forth in the regulations and not a secret number hidden somewhere on the vehicle where the average person would not think of looking. See Commonwealth v. Unkrich (1940), 142 Pa. Super. 591, 595, 16 A.2d 737, 739-40.

We noted above that this court, in People v. Billardello (1925), 319 Ill. 124, upheld a statute designed to accomplish the same end which the State argues is the purpose of the statute now under consideration. In that case the defendant was charged with the offense of possessing a motor vehicle the original engine identification number of which had been altered. The court held that it was within the power of the legislature in the exercise of its police power for the protection of the public to declare the performance of a suspect act a crime regardless of knowledge or intent. However, the court stated:

“By the exercise of reasonable care when he becomes the owner of a motor vehicle, a purchaser can assure himself. that the factory and engine numbers have not been changed and that the provisions of the law have been complied with ***.” (People v. Billardello (1925), 319 Ill. 124, 127.)

The court in that case relied on the holding in People v. Fernow (1919), 286 Ill. 627, which upheld a previous automobile anti-theft law which made it an offense to possess a motor vehicle from which the identification number had been removed or defaced. The court stated:

“For the effective protection of the public the burden is placed upon the individual of ascertaining at his peril whether his act is prohibited by criminal statute.” People v. Fernow (1919), 286 Ill. 627, 630.

We do not quarrel with the legislature’s authority to make an act a crime even though the individual has no intent to commit a criminal act, or knowledge that he has done so. However, here we are not talking about intent. Bridegroom took the necessary steps to assure himself that the vehicle identification number located at the place required by regulations matched the identification number on the title. That is all that this statute could constitutionally require. Placing a number at some concealed or confidential place on the vehicle undoubtedly has its value for purposes of identification, but such a number cannot be used for the purpose of declaring this vehicle in this case, under these facts, contraband per se. Such a declaration constitutes a due process violation.

The complaint filed in the circuit court by the State’s Attorney and the record of the trial court do not disclose that there has been any prosecution of the seller or of the purchaser of this automobile, or of anyone in connection with any aspect of its seizure. Section 4—107 (i) provides that it shall be the duty of the State’s Attorney of the county in which the seizure of the automobile occurs to make application to the court on final determination of any prosecution arising out of the seizure for an order to sell the property seized. The question whether a prosecution under section 4—102 or section 4—103 is a prerequisite to an action by the State’s Attorney under section 4—107(i) has not been raised, argued or briefed in this court. The trial court and the appellate court decided the constitutional issue and that is the question argued in this court and the basis of our decision.

The judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE WARD

license: Public Domain

text:
    (No. 54403.
    MARY HEIDI SEVERS et al., Appellees, v. COUNTRY MUTUAL INSURANCE COMPANY et al., Appellants.

      Opinion filed March 16, 1982.

      Wagner, Bertrand, Bauman & Schmieder, of Belleville (Bernard H. Bertrand, of counsel), for appellant Country Mutual Insurance Company.
    Robert D. Francis, of Dunham, Boman, and Leskera, of East St. Louis, and Clinton J. Thurston, of Thurston & Associates, of Cairo, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

Mary Heidi Severs, a minor, was injured on August 1, 1974, in a one-vehicle accident while riding as a passenger in her father’s automobile, which was insured by the defendant Country Mutual Insurance Company (Country Mutual). The car was being driven by the codefendant Dixie L. Rogers, who was uninsured. On December 4, 1978, Mary Heidi, by her mother, Geri S. Severs, individually and as next friend, and her father, Perry A. Severs, Jr. (Severs), filed a complaint for a declaratory judgment construing the terms of the automobile insurance policy issued to Severs by Country Mutual. The circuit court of St. Clair County held there was no coverage under the liability provisions of the policy because of an exclusion in the policy barring recovery by a resident relative of the named insured, Severs. The court also declared that coverage under the uninsured motorist section of the policy extended to Mary Heidi, but it held that the plaintiffs had failed to comply with the section’s requirement that any action under the section be commenced within two years of the accident. The motion for summary judgment which the plaintiffs had also filed was denied, and the complaint for declaratory judgment was dismissed with prejudice. The appellate court decided that because of the family-exclusion provision there was no coverage under the liability section of the policy, but it held that the provision that suit for recovery under the uninsured motorist provision had to be brought within two years was against public policy when applied in the case of a minor. (91 Ill. App. 3d 350.) We granted Country Mutual’s petition for leave to appeal. 73 Ill. 2d R. 315.

The only question presented by Country Mutual is whether the provision requiring that an action be commenced within two years after occurrence of the loss or casualty is valid as applied to a minor.

Country Mutual argues that Mary Heidi’s rights arise out of the automobile insurance policy or contract, and that by suing on the contract, she affirms and is bound by all of its terms, including the two-year limitation. Since the two-year limitation is part of the contract, Country Mutual says that bringing suit within two years was a condition precedent to the right to recover under the contract.

The plaintiffs contend that the limitation provision offends public policy and is void when applied to a minor. It acts, they say, to defeat the purpose of the statute requiring that all automobile insurance policies issued in this State provide uninsured motorist coverage.

Since July 1, 1963, section 143a of the Illinois Insurance Code (Ill. Rev, Stat. 1973, ch. 73, par. 755a) has required that an automobile insurance policy provide uninsured motorist coverage. This uninsured coverage extends to insured persons who may be entitled to recover damages for bodily injury or death from owners and operators of uninsured motor vehicles. Section 143a does not set forth any period within which an insured must bring an action in order to recover under an uninsured motorist provision. The uninsured motorist section of Severs’ policy provides for payment of “all sums which the insured or his legal representative shall be legally entitled to recover as damages from the *** operator of an Uninsured Vehicle because of bodily injury *** sustained by the Insured ***.” It further provides that “[n] o suit, action or arbitration proceedings for the recovery of any claim under this Section shall be sustainable in any court of law or equity unless the Insured shall have fully complied with all of the terms of this policy, nor unless commenced within two (2) years after the occurrence of the loss.”

Mary Heidi Severs was under two years of age at the time of the accident. She was under seven years when her mother filed suit on her behalf as her next friend. It is not disputed that Mary Heidi was an insured under the uninsured vehicle provision of the policy or that the vehicle in which she was riding was an “Uninsured Vehicle” as defined by the policy.

The legislative intention in enacting section 143a of the Insurance Code was in part to insure that persons injured by an uninsured motorist are protected at least to the extent that compensation is made available for persons injured by a motorist insured for the minimum limits under section 7—203 of the Illinois Safety Responsibility Law (Ill. Rev. Stat. 1973, ch. 95½, par. 7—203). (Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71.) It is logical that a legislative design to provide similar protection for both classes of injured persons requires that Mary Heidi must be allowed the same period of time within which to bring suit that she would have had if the driver, codefendant Dixie Rogers, had been insured. If Dixie Rogers had insurance coverage as described in section 7—203 of the Illinois Safety Responsibility Law, Mary Heidi’s action would not have been barred until two years after she had reached the age of majority. (See Ill. Rev. Stat. 1973, ch. 83, par. 22; see Casillas v. Rosengren (1967), 86 Ill. App. 2d 139.) The purpose underlying a statute cannot be circumvented by the insertion of a contrary or restricting provision in an insurance policy. (Prosk v. Allstate Insurance Co. (1967), 82 Ill. App. 2d 457.) The practical effect of the policy provision here would deprive an insured minor, who could not in her own behalf file an action, of the uninsured motorist coverage required by statute. We hold that the provision may not be asserted as a bar to recovery by a minor.

It is undeniable that there are legal disabilities imposed upon minors. For example, speaking generally, a minor, inter alia, cannot enter into a contract which can be enforced against him (see Dixon National Bank v. Neal (1955), 5 Ill. 2d 328; see Perry v. Saleda (1976), 34 Ill. App. 3d 729) and cannot bring suit in his own name (Ill. Rev. Stat. 1973, ch. 3, par. 141). Mary Heidi could neither contract for insurance nor sue the insurance company in her own name and behalf. (The statute permitting a minor of 15 or more years to contract for certain insurance (Ill. Rev. Stat. 1973, ch. 73, pars. 854, 981) is not involved here.) The fact that suit might be brought on a minor’s behalf by a guardian ad litem or next friend does not eliminate the necessity of insuring that the minor’s rights are not violated or neglected. This court long ago observed that “[a] child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement will not be left to the whim or mercy of some self-constituted next friend to enforce its rights.” (McDonald v. City of Spring Valley (1918), 285 Ill. 52, 56.) This concern for minors’ rights has been a continuing one: “Minor litigants are, of course, entitled to special protection by the courts, particularly to see that their rights are protected even from the neglect of their representative in order to do substantial justice.” (Brandon v. DeBusk (1980), 85 Ill. App. 3d 645, 648; see also Country Mutual Insurance Co. v. Kuzmickas (1971), 2 Ill. App. 3d 313.) Indeed, this court’s decisions make it clear that the public policy of this State requires that “ «*** a minor should not be precluded from enforcing his rights unless clearly debarred from so doing by some statute or constitutional provision.’ ” Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 73, quoting from Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, 197. See also Johnson v. Industrial Com. (1972), 53 Ill. 2d 23, 24.

The plaintiffs raise again the question of whether an automobile policy’s family-liability exclusion should be given effect and bar recovery by a relative who resides with the named insured. The family exclusion in Country Mutual’s policy provides that “[t] his policy does not apply under Section I [the liability section] * * * to bodily injury sustained by the Insured or his Relatives [who reside with the Insured].” The exclusion is clear and unambiguous. It will, therefore, be applied as written, unless it contravenes public policy. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420.) The plaintiffs make no contention that the exclusion is contrary to the public policy of this State. They indeed recognize that generally it is held that, in the absence of a statutory provision to the contrary, automobile liability policy provisions excluding household and family members from coverage are valid and effective. (Annot., 46 A.L.R.3d 1024, 1029 (1972). See Banner Insurance Co. v. Avella (1970), 128 Ill. App. 2d 471.) Mary Heidi clearly comes within the terms of the exclusion.

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

Judgment affirmed.


author:
CHIEF JUSTICE RYAN JUSTICE CLARK,
      JUSTICE WARD, JUSTICE SIMON,

text:
    (No. 54225.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN GERVASI et al., Appellees.

      Opinion filed April 16, 1982.

      CLARK, J., specially concurring.
    WARD and SIMON, JJ., concurring in part and dissenting in part.
    Tyrone C. Fahner, Attorney General, of Springfield, and Bernard Carey and Richard M. Daley, State’s Attorneys, of Chicago (Melbourne A. Noel, Jr., and Mark Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Joel A. Stein, and Michael E. Shah at, Assistant State’s Attorneys, of counsel), for the People.
    Neville, Pappas & Mahoney, of Chicago (Ronald F. Neville, George Pappas, and Anthony J. Onesto, of counsel), for appellee John Gervasi.
    Sam Adam and James I. Marcus, of Chicago (Barry Spevack and Williams & Marcus, Ltd., of counsel), for appellee Michael Ettinger.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

The defendants, John Gervasi and Michael Ettinger, were charged in a nine-count indictment with bribery, solicitation, and conspiracy in the circuit court of Cook County. At a hearing on a motion to suppress evidence, it was stipulated that telephone conversations between the defendants and police officers were overheard by court reporters who were listening on extension telephones from which the speaking element had been removed. Also, other conversations were overheard by investigators and court reporters without any listening devices. All the conversations were taken down by the court reporters using a stenograph machine. The trial court, on defendants’ motion, suppressed all transcripts of and testimony relating to the conversations. The appellate court affirmed in part and remanded for a hearing on whether the testimony and transcripts of the in-person conversations should have been suppressed. (90 Ill. App. 3d 1117.) We granted the State leave to appeal. 73 Ill. 2d R. 315.

Charles Soteras, while driving a stolen automobile, was arrested by Blue Island police officer Daniel Furay and Sergeant Paul Barnes. Defendant Gervasi, an attorney, was called to the police station to represent Soteras.

Gervasi told Furay that he would contact him later. Several days later, Furay received a business card from defendant Gervasi with the following words written on the back: “Danny, Going out of town Saturday, Sunday, Monday. Will return Tuesday afternoon. Could you please call. I would like to talk to you.” Furay, believing that he would be offered money to help Soteras in his pending criminal case, contacted the Cook County State’s Attorney’s office. A plan was devised to monitor the conversations between defendant Gervasi and Furay.

During the next two months, Gervasi called Furay at his home 20 times. A court reporter, employed by the State’s Attorney’s office, was present and listened to all of the conversations on an extension telephone in the Furay home. The telephone was a regular telephone that had been in the home for several years. On each occasion, the reporter removed the speaking element in the mouthpiece of the telephone, listened to the conversation and transcribed it with “the same type of manually operated machine used by most court reporters in the courtroom.” On three occasions Furay called Gervasi. One call was made from Furay’s home and the other two were made from the State’s Attorney’s office. These conversations were monitored by court reporters on extension phones which had been similarly altered.

Gervasi also visited Furay at his home on four occasions. On two occasions, a court reporter was located so that he could overhear the conversation, which he recorded by use of a stenograph machine.

Officer Furay had six telephone conversations with defendant Ettinger, also an attorney. The same technique as described above was used to record the conversations with defendant Ettinger.

There were three telephone conversations between defendant Gervasi and an assistant State’s Attorney. Also, one telephone conversation took place between Gervasi and Sergeant Barnes. These conversations were monitored and recorded using the same technique described above.

The trial court held that an eavesdropping device as defined in section 14—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 14—1) had been used to transcribe the telephone conversations and that the State’s Attorney’s office had not received judicial approval as provided in section 108A—1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 108A—1). The trial court entered an order suppressing the court reporters’ transcripts of both the telephone and in-person conversations between the defendants and investigators. Also, the court suppressed the prospective testimony of the court reporters and the police officers regarding all conversations with the defendants. The appellate court affirmed but remanded with directions to conduct a hearing to determine whether the testimony of Officer Furay and the court reporters “regarding the in-person conversations and the transcripts of these conversations were the fruit of the poisonous tree.”

The State argues that no eavesdropping device was used in this instance and that, therefore, no judicial authorization was required. Secondly, the State argues that, even if there was an eavesdropping device in use, the testimony of Office Furay was not tainted in any way and, therefore, should not be suppressed.

We first consider whether an extension telephone with the speaking element removed from the mouthpiece is an eavesdropping device as defined in section 14—1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 14—1(a)), which states that an eavesdropping device is “any device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means.” (Ill. Rev. Stat. 1977, ch. 38, par. 14—1(a).) In People v. Gaines (1981), 88 Ill. 2d 342, we held that an extension telephone was not an eavesdropping device within the statutory definition. In Gaines we reaffirmed this court’s holding in People v. Dixon (1961), 22 Ill. 2d 513, which was decided under the 1959 eavesdropping statute and applied the holding in Dixon to the current definition of an eavesdropping device in section 14—1(a) of the Criminal Code of 1961. We stated in Gaines that the basis of the Dixon decision must have been “that the statute is directed against the use of devices other than the telephone itself when the latter has not been functionally altered.” (People v. Gaines (1981), 88 Ill. 2d 342, 363.) An extension telephone by itself, therefore, is not an eavesdropping device. However, if it has been “functionally altered” in some manner so that it is no longer capable of performing its customary function it is no longer a telephone.

The function of a telephone is to transmit and receive sound. A telephone which is altered so that it can no longer perform one of these functions, namely the transmission of sound, is not a telephone but only a listening device. The removal of the transmitter or speaking element from the mouthpiece of each of the telephones made them eavesdropping devices within the meaning of our statute.

We next consider the effect of the illegal monitoring of these telephone conversations. Since one party to the conversations had consented to the monitoring, neither the Federal Constitution, nor the constitution of this State was offended. (People v. Kezerian (1979), 77 Ill. 2d 121; People v. Richardson (1975), 60 Ill. 2d 189.) However, section 14—5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 14—5) provides:

“Any evidence obtained in violation of this Article is not admissible in any civil or criminal trial ***.”

Also, article 108A of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 108A—1 et seq.) provides for judicial supervision of the use of eavesdropping devices and states:

“(a) Any aggrieved person in any judicial or administrative proceeding may move to suppress the contents of any recorded conversation or evidence derived therefrom ***.” (Ill. Rev. Stat. 1977, ch. 38, par. 108A-9.)

By virtue of these two statutory provisions, the trial court properly suppressed the testimony of the court reporters as to the telephone conversations and the transcripts of what they heard by use of the altered extension telephones.

The appellate court held that the prospective testimony of Officer Furay, Sergeant Barnes and Assistant State’s Attorney Burnham, participants in the various conversations, was “fruit of the poisonous tree” and should be suppressed. (Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.) The State argues that the “fruit of the poisonous tree” doctrine does not apply in this instance since the knowledge of the investigators was not derived from an unlawful act and that an independent basis exists for the investigators’ knowledge of the contents of the conversations.

The test of whether evidence is “fruit of the poisonous tree” is best stated in Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417, as follows:

“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).”

In People v. Maslowsky (1966), 34 Ill. 2d 456, we held that the “fruit of the poisonous tree” doctrine was expressly included in our eavesdropping statute by the legislature.

However, the doctrine does not apply in this case. The testimony of the investigators regarding the conversations would not even come within the broader “but for” test rejected by the Supreme Court in Wong Sun. The basic assumption underlying the “fruit of the poisonous tree” doctrine is that the challenged evidence is derived from some violation of a statutory or constitutional right. In United States v. Crews (1980), 445 U.S. 463, 470, 63 L. Ed. 2d 537, 545, 100 S. Ct. 1244, 1249, the Supreme Court stated:

“Wong Sun, supra, articulated the guiding principle for determining whether evidence derivatively obtained from a violation of the Fourth Amendment is admissible against the accused ***.” (Emphasis added.)

The court went on to state:

“In the typical ‘fruit of the poisonous tree’ case, however, the challenged, evidence was acquired by the police after some initial Fourth Amendment violation, and the question before the court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the ‘taint’ imposed upon that evidence by the original illegality. Thus most cases begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.” (United States v. Crews (1980), 445 U.S. 463, 471, 63 L. Ed. 2d 537, 545, 100 S. Ct. 1244, 1249-50.)

See also Lopez v. United States (1963), 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381.

This doctrine cannot apply where, as here, the investigators’ knowledge was not derived from the court reporters’ eavesdropping activities. In this case, there is no primary illegality in regard to the investigators’ knowledge of the content of the conversations.

The defendants rely on People v. Satek (1979), 78 Ill. App. 3d 543, to support their position that the testimony of the officers should be suppressed. In Satek a suspect, James Poghen, Jr., placed a phone call from the police station which was recorded. After having been told that the call had been recorded, Poghen admitted his involvement in the offense and implicated the defendant in that case, James Satek. The trial court suppressed Poghen’s testimony at Satek’s trial because of a violation of the eavesdropping statute. The court held that although Poghen had first-hand knowledge of the offense independent of the recording, his testimony should be suppressed except as to those events occurring after he had been approached by the police until the time that he made the telephone call. The appellate court held that the trial court could have concluded that Poghen’s testimony was not obtained by a means subsequently distinguishable from the illegality so as to be purged of the taint. The trial court could have considered that Poghen’s conversation and statement implicating Satek occurred immediately after he was told that the phone call had been recorded. The gist of the holding in Satek is that the information concerning Satek’s involvement had been induced by or come by as a result of the illegal eavesdropping. The holding in Satek is not helpful under the facts of our case. The officers’ knowledge of and his testimony concerning the contents of the phone conversations in our case were completely independent of the illegal eavesdropping. Therefore, there is no indication that the testimony of these officers was in any way induced or influenced by the eavesdropping. Here the officers were the actual participants in the conversations. Their knowledge of what was said was not derived from any illegal action. They spoke directly with the defendants, and most of the conversations were initiated by the defendants and none of them were the result of illegal eavesdropping. The officers were the participants in the conversations and were not the eavesdroppers.

In People v. Porcelli (1974), 25 Ill. App. 3d 145, an assistant State’s Attorney tape-recorded a telephone conversation between a policeman and a lawyer. The lawyer offered money to a policeman if he would change a police report in reference to a client of the defendant lawyer. The lawyer was indicted for bribery. The tape recording was suppressed by the trial court because the authorization by the State’s Attorney did not meet the standards required by Illinois law. The appellate court affirmed the suppression of the tape recording but held that the policeman should be permitted to testify to what was said. The court stated:

“ [T] he transcribing did not render inadmissible all testimony concerning the conversation or the evidence which was not directly derived from it.” (People v. Porcelli (1974), 25 Ill. App. 3d 145, 150.)

The court also pointed out that the conversation was motivated independently of the eavesdropping and that there was no connection between the conversation and the eavesdropping. As in the instant case, the policeman in Porcelli was a participant in the conversation and his knowledge of what was said was not derived from the illegal recording. (See People v. Mosley (1978), 63 Ill. App. 3d 437.) In our case, as in Porcelli, the defendant knew that he was dealing with police officers. The eavesdropping statute does not protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides will not thereafter properly reveal his wrongdoing. The officers did not surreptitiously obtain information from the defendants. In United States v. White (1971), 401 U.S. 745, 751, 28 L. Ed. 2d 453, 458, 91 S. Ct. 1122, 1125-26, the Supreme Court stated:

“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights.”

We conclude that the testimony of the officers as to the telephone conversations should not have been suppressed.

The final issue is whether the testimony and transcripts of the in-person conversations between defendant Gervasi and Officer Furay should be suppressed. There were four in-person conversations, two of which were overheard by Sergeant Barnes and an investigator for the State’s Attorney’s office, and the other two conversations were overheard by a court reporter who recorded them on a steno-graph machine. The in-person conversations were overheard without the aid of any eavesdropping devices.

The appellate court remanded this issue to the trial court with directions to hold a hearing to determine whether the testimony and transcripts of those conversations “were the fruit of the poisonous tree.” The trial court held that there is a logical inference that the information obtained from the illegal eavesdropping was relied on by the State in arranging to have persons in the Furay residence to overhear the in-person conversations. The appellate court, however, held that the trial court, without having read the transcripts of the eavesdropping, could not have determined that the conversations were the fruit of the poisonous tree and thus remanded for a hearing on this issue. As we have noted, Officer Furay was a participant in the conversations. The transcripts of the telephone conversations could contain no information to which Officer Furay could not testify.

The defendant has not demonstrated, except by conjecture, that the monitoring of the in-person conversations was in any way the result of the illegal eavesdropping. In People v. Wilson (1975), 60 Ill. 2d 235, 238, this court stated:

“If an accused establishes the ‘primary illegality’ and shows a connection between the illegality and what are alleged to be the fruits of the illegality, the prosecution will have the burden of establishing by clear and convincing evidence that the challenged evidence has come from an independent source.”

In our case the defendant has not met the burden of showing a connection between the illegal eavesdropping and the subsequent in-person conversations between the defendant Gervasi and Officer Furay. Thus, the burden of establishing that the challenged evidence has come from an independent source has not shifted to the State. It is more logical to assume that these meetings were the result of Officer Fur ay’s activities and the information obtained from him than it is to assume, as the trial court did, that they stemmed from the illegal eavesdropping. In Silverthome Lumber Co. v. United States (1920), 251 U.S. 385, 392, 64 L. Ed. 319, 321, 40 S. Ct. 182, 183, the court stated that “[i] f knowledge of them [corporate records] is gained from an independent source they may be proved like any others.” Officer Furay is an independent source of all information overheard by investigators or court reporters, and the overheard conversations “may be proved like any others.”

In sum, we hold that an extension telephone with the speaking element in the mouthpiece removed is functionally altered and was, therefore, not a telephone but an eavesdropping device. The court reporters’ testimony as to what they overheard in this manner was properly suppressed. Also, transcripts of the telephone conversations made by the court reporters were properly suppressed. The testimony of Officer Furay, Sergeañt Bames and Assistant State’s Attorney Burnham regarding their telephone conversations with the defendants should not have been suppressed. Likewise, the testimony by the investigators and court reporters regarding the in-person conversations between defendant Gervasi and Officer Furay and the transcripts of those conversations should not have been suppressed.

Accordingly, the appellate court is affirmed insofar as it affirmed the suppression of the testimony of the court reporters and their transcripts concerning the monitored telephone conversations. The appellate court is reversed as to its order vacating the circuit court’s suppression of the testimony of the participants in the conversations and the transcripts of the in-person conversations: The appellate court is also reversed as to its order remanding for further hearing the question of the suppression of the testimony and the transcripts of the overheard in-person conversations. The cause is remanded to the circuit court of Cook County for further proceedings.

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

JUSTICE CLARK,

specially concurring:

I concur with the result reached by the majority. I adhere to the statements made in my dissent in People v. Gaines (1981), 88 Ill. 2d 342, that when an extension telephone is used to surreptitiously overhear the conversation of two people, then it becomes an eavesdropping device although one party may have consented. It is the use to which the extension telephone is put that makes it illegal. I believe that to hold otherwise ignores the plain meaning of the statutory language that an “eavesdropping device” as defined by section 14—1(a) of the Criminal Code of 1961 is “*** any device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means ***.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 14-1 (a).

The majority, in my opinion, correctly concludes that the “functionally altered” extension telephone is an eavesdropping device as defined in section 14—1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 14—1(a)), and evidence obtained through its use is properly suppressed.

I also agree with the majority that the appellate court erred in determining that the testimony and transcripts of the in-person conversations between the defendant and Officer Furay should have been suppressed, since the State adequately demonstrated that the evidence came from “an independent source.” I do, however, disagree with the majority insofar as the court addresses the defendant’s burden of demonstrating a connection between the illegal eavesdropping and the subsequent in-person conversations. It is true that the defendant must show a connection between the illegality and the alleged fruits of that illegality. (Cf. Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008.) But the defendant does not shoulder a “burden” of establishing that connection by clear and convincing evidence. It is the State that, following the showing of the primary illegality and the connection to the evidence in question, must carry the burden of demonstrating by clear and convincing evidence that the source of the information is an independent one. People v. Wilson (1975), 60 Ill. 2d 235, 238; Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008.

The majority notes that in determining whether evidence is admissible the inquiry properly focuses on whether the “taint” of the original illegality has been removed. “ ‘*** Thus most cases begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.’ ” (89 Ill. 2d at 529, quoting United States v. Crews (1980), 445 U.S. 463, 471, 63 L. Ed. 2d 537, 545, 100 S. Ct. 1244, 1249-50.) However, the State met its burden of showing that, since Officer Furay was a participant in the phone conversations, he did not have to rely on the transcripts gained through the illegal eavesdropping. As such the State established independent grounds that removed the “taint” from the in-person conversations and the transcripts of those conversations. That evidence should not have been suppressed.

JUSTICE WARD,

concurring in part and dissenting in part:

I concur insofar as the majority has reversed the appellate court, but I must respectfully dissent from the majority’s view that the removal of the speaking element from the mouthpiece of an extension telephone converted the telephone into an eavesdropping device. The majority’s reasoning is plausible only at a quick reading. On consideration, the analysis, I believe, is overly simple; the question involved is more subtle than the majority perceives.

Our eavesdropping statute defines an eavesdropping device as “any device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means.” (Ill. Rev. Stat. 1977, ch. 38, par. 14—1(a).) The majority correctly recognizes that an extension telephone is not of itself an eavesdropping device. The eavesdropping statute is directed at devices “capable of being used to hear or record oral conversation,” including conversations conducted by telephone. A telephone is obviously capable of being used to hear and is not of itself a device at which the eavesdropping statute is directed. The statute is directed at devices other than telephones themselves. It would, however, reach devices that might be attached or added to telephone instruments or equipment or wires, which are capable of being “used to hear or record” conversations. (Curiously and, to me, unconvincingly, the majority holds that the removal of apart of the extension phone transformed it into an eavesdropping device. That is, changed it into a “device capable of being used to hear ***.” Of course, it, as a phone, was already capable of being used to hear. Too, until now the common perception has always been that eavesdropping involves the attachment of a device to a telephone or to its equipment or wires — not the removal of a part of the phone.)

The majority says that the telephones here were eavesdropping devices because this court in People v. Gaines (1981), 88 Ill. 2d 343, 363, observed that the eavesdropping statute is directed against the use of devices other than the telephone itself when the telephone “has not been functionally altered.” The majority then goes on to hold that a telephone without a speaking element is no longer a telephone but has become an eavesdropping device. That would mean that it now has become “capable of being used to hear or record oral conversation.” But it was, however, as stated, capable of being used to hear in its prior state or condition simply as a telephone. We used the language quoted from Gaines in reaffirming this court’s holding in People v. Dixon (1961), 22 Ill. 2d 513, that an extension telephone was not an eavesdropping device. The extension phones involved in Dixon and in Gaines were purely extension phone instruments; they were not altered in any way. The reference in Gaines to phones that had not been functionally altered was obviously nondecisional language. The language was not necessary to determine the question whether there had been eavesdropping, as the extension telephone had not been altered. It did not set out the holding in the case. And certainly Gaines did not undertake to define what was meant by a functional alteration. Furthermore, the majority over-simply concludes that a “functionally altered” phone is an eavesdropping device. It says that because the speaking element was removed from the phone it was functionally altered and therefore became an eavesdropping device. This is erroneous. Obviously a phone that is “functionally altered” to create a conversation piece by replacing the speaking element with an alarm-clock unit or a tiny musical tape player does not become an eavesdropping device. Every alteration is not to be equated with a conversion into an eavesdropping device. If, however, in a police interrogation room a recording device were inserted in what seemed to be an innocent telephone, the phone would be truly functionally altered. The dummy phone would be a device capable of recording. It would have been changed to an eavesdropping device.

The extension phone here was not altered in the sense that it became an eavesdropping device. Considering the language and purpose of the eavesdropping act one can say that an eavesdropping device is one that permits one to hear a conversation or record it by means of a device other than simply a telephone.

If the person who is monitoring simply listens on an extension telephone that was altered but only in such a way that the monitor’s ability to hear the conversation on the principal telephone was not enhanced or affected in any way, there is no ground for saying that the extension telephone was converted into an eavesdropping device. The monitoring person’s testimony should be admitted and any transcript of the defendant’s statements should also be admitted, as it was not made by use of an eavesdropping device attached to the extension phone or to the equipment. The result or effect of the extension telephone’s use here was the same so far as the listeners were concerned as if the extension had not been altered. There was no other person permitted to hear the conversation who would npt have been able to have heard it were the telephone unaltered. The legislative intendment of the eavesdropping statute was to prevent persons from hearing a conversation who, unaided by an eavesdropping device, would not have been able to have listened to the conversation.

The purpose of removing the mouthpiece here was, of course, to prevent the defendant from hearing any background sounds through the extension which might have led him to suspect that his statements were being monitored or that they were being taken down, in which case the defendant, of course, would have ended the conversation.

In Gaines, we made reference to this court’s holding in People v. Kurth (1966), 34 Ill. 2d 387. There the State’s witness had had installed on his telephone an electronic device which was used to monitor a conversation between Smith and the defendant (see 34 Ill. 2d 387, 392). A recording of that conversation was also made, and the question was whether the recording was admissible. There was no listening in on an extension telephone. This court treated the device as an eavesdropping device.

Adams v. State (1981), 289 Md. 221, 424 A.2d 344, involved a factual situation resembling the one here. There a rape victim made a tentative photographic identification of the defendant and the police decided to conduct a voice identification through use of the telephone. The victim listened in on the extension phone within the station while a policewoman made calls to the defendant. The mouthpiece of the victim’s phone was removed so that the receiving party would not be aware of the presence of the victim. The victim identified the defendant’s voice as that of her attacker.

The defendant contended that the voice identification involved an unauthorized interception in violation of the State’s wiretap laws. Maryland’s statute differs from ours, and what the court said concerning the interception question is not relevant here. But the observation of the court that the use of the telephone instrument did not convert it into something other than a telephone is pertinent. The court said:

“The appellant places some significance on the fact that the mouthpiece of the extension phone was removed. This did not substantially alter the instrument so that it became something other than a telephone. The police could have achieved the same result by having the victim hold her hand over the mouthpiece.” Adams v. State (1981), 289 Md. 221, 229, 424 A.2d 344, 348.

I submit that the removal of the mouthpiece here was not, given the language of our eavesdropping statute, an event or act of legal significance. The effect or result so far as the monitoring stenographer was concerned was just the same as it would have been had the mouthpiece not been removed. In either event, she would have heard the statements of the defendant and would have been enabled to take them down.

Accordingly, I would reverse the judgments of the appellate and circuit courts.

JUSTICE SIMON,

also concurring in part and dissenting in part:

I agree with the majority that an eavesdropping device was employed, and that the appellate court properly affirmed the suppression of the testimony of the court reporters and their transcripts concerning the monitored telephone conversations. I dissent, however, insofar as the majority has reversed the appellate court, because I regard the majority’s conclusion that the testimony of the officers regarding the telephone conversations should not have been suppressed as premature. So is the majority’s conclusion that the in-person conversations and transcripts of them should not have been suppressed. I believe additional evidence is required before any court can properly determine whether these conversations or some of them should be suppressed.

It is possible and likely, as the defendants argue, that the transcripts suppressed by the court in this case were used by the police or officials of the State’s Attorney’s office to coach Officer Furay, Sergeant Barnes and Assistant State’s Attorney Burnham regarding the direction in which they should lead their future conversations with defendants Gervasi and Ettinger. Even if the defendants have the burden to show that the illegal transcripts were used for this purpose, in view of the procedure followed in the circuit court, where the defendants prevailed, they do not appear to have had the opportunity to show whether the tainted transcripts were referred to in arranging the later telephone and in-person conversations. If transcripts of the illegally recorded conversations were referred to by any of the government agents involved to prepare for future conversations with the defendants, I believe that these conversations were also tainted and should be suppressed.

Implicit in People v. Wilson (1975), 60 Ill. 2d 235, 238, upon which the majority’s conclusion on this point turns, is the requirement that the defendants be given a chance to develop this type of evidence before the question of suppression is finally determined. If the defendants are successful in doing this, it would then be the State’s burden to rebut by clear and convincing evidence what the defendants had established. The State would have to prove either that the transcripts were never referred to or that Officer Furay was an independent source of what was said in later conversations. The answers to these questions are by no means as clear cut as the majority appears to believe. If the evidence shows that Officer Furay or his collaborators referred to the tainted transcripts to refresh their recollection or to obtain advice to prepare for later conversations, I do not see how he can still be labeled an independent source for the purpose of subsequent conversations.


author: JUSTICE GOLDENHERSH JUSTICE SIMON,

text:
    (No. 55989.
    McHENRY STATE BANK et al., Appellants, v. WILLIAM C. HARRIS, Commissioner of Banks and Trust Companies, et al., Appellees.

      Opinion filed April 16, 1982.

    SIMON, J., specially concurring.
    Sheldon Karon, Victor G. Savikas, David R. Melton, and Miriam Farkas, of Karon, Morrison & Savikas, Ltd., of Chicago, and Paul E. Presney, of Presney, Huffman, Kelly & Appelton, of Springfield, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield, and Charles A. Bane, and Julian C. D’Esposito, Jr., Special Assistant Attorneys General, of Isham, Lincoln & Beale, of Chicago, of counsel, for appellee Commissioner of Banks.
    Harvey B. Stephens and Mark H. Ferguson, of Brown, Hay & Stephens, of Springfield, and Ray H. Greenblatt, Wayne W. Whalen, and James K. Genden, of Mayer, Brown & Platt, of Chicago, for intervenor-appellee Association For Modern Banking in Illinois.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, McHenry State Bank, First National Bank of Lacón, State Bank of Arthur, and Marquette National Bank, appealed from the judgment of the circuit court of Sangamon County entered in favor of defendant, William C. Harris, Commissioner of Banks and Trust Companies (hereinafter Commissioner), dismissing with prejudice plaintiffs’ action for declaratory judgment and injunctive relief. We allowed plaintiffs’ motion filed pursuant to Supreme Court Rule 302(b) (73 Ill. 2d R. 302(b)), and the cause was transferred to this court.

In their complaint, as amended, plaintiffs sought a declaratory judgment that Public Act 82—21 (Pub. Act 82—21, approved July 3, 1981, effective January 1, 1982; hereinafter the Act), which amended portions of the Bank Holding Company Act of 1957 (Ill. Rev. Stat. 1979, ch. 16½, par. 71 et seq.; now found in Ill. Ann. Stat., ch. 17, par. 2501 et seq. (Smith-Hurd 1981)) and the Illinois Banking Act (Ill. Rev. Stat. 1979, ch. 16½, par. 101 et seq.; now found in Ill. Ann. Stat., ch. 17, par. 301 et seq. (Smith-Hurd 1981)), was unconstitutional and also to enjoin the defendant commissioner from taking any action under the amended provisions. The Association for Modern Banking in Illinois, an Illinois not-for-profit corporation sought and was granted leave to intervene as a party defendant. Both the defendant commissioner and the intervenor defendant moved to strike the amended complaint and dismiss the action with prejudice. The complaint attacked the statute on the same grounds which are argued in this appeal, and they will be discussed to the extent necessary to this opinion. The circuit court held the statute constitutional, and upon allowance of the motions dismissed the action with prejudice.

Plaintiffs contend that the Act permits branch banking in two ways: first, that the community service facilities authorized therein are branch banks and, second, that branch banking is made possible through the multibank holding companies provided for in the Act. They argue that because the effect of the Act is to authorize branch banking it is invalid for the reason that it failed to receive the three-fifths majority in each house of the General Assembly required by article XIII, section 8, of the Illinois Constitution, which provides:

“Branch banking shall be authorized only by law approved by three-fifths of the members voting on the question or a majority of the members elected, whichever is greater, in each house of the General Assembly.” Ill. Const. 1970, art. XIII, sec. 8.

They contend, too, that in enacting the Act “the General Assembly has unconstitutionally delegated its legislative authority to Congress and the Federal Reserve Board in violation of article IV, section 1 of the Illinois Constitution.” They argue that the Act unconstitutionally delegates to the Federal Reserve Board the power to define branch banking and that it also automatically incorporates into the Act all future amendments to the Federal Bank Holding Company Act (12 U.S.C. sec. 1841 et seq. (1976)).

The circuit court held that the Act “does not in any respect authorize branch banking either by authorizing multi-bank holding companies or by permitting the establishment and operation of community service facilities”; that passage of the Act did not “require the extraordinary majority vote necessary to authorize branch banking under article XIII, section 8 of the Illinois Constitution”; and that the Act “was approved by three-fifths of the members voting on the question and by a majority of the members elected in each house of the General Assembly.”

We consider first the question whether the Act authorizes branch banking within the contemplation of article XIII, section 8, of the Constitution. The Act amended section 5 of the Illinois Banking Act (Ill. Rev. Stat. 1979, ch. 16½, par. 105; now found in Ill. Ann. Stat., ch. 17, par. 311 (Smith-Hurd 1981)), and plaintiffs contend that subparagraph 19 of section 5, which authorizes the establishment of community service facilities, permits branch banking. Section 5, in pertinent part, provides:

“Sec. 5. *** A bank organized under this Act *** shall *** have *** the following additional *** powers:
* * *
(19) To establish and maintain not more than one community service facility, provided such facility complies with the following provisions:
(a) Any community service facility may be established within or outside of the county in which the main banking premises of the maintaining bank is located, provided that, if established outside of the county, any such community service facility may be no more than 10 miles from the main banking premises of the maintaining bank.
(b) The provisions of subparagraph (c), (d) and (f) of paragraph 15 of this Section are applicable to each community service facility established under this paragraph 19.
(c) No community service facility shall be closer than one mile to any then existing main banking premises of another bank unless:
(i) it is closer to the maintaining bank than to main banking premises of such other banking house, or
(ii) it is established with the irrevocable consent of such other bank, or
(iii) it is established and maintained by a bank which is located in a city of 500,000 or more inhabitants and at least some part of the main banking premises of each of 4 or more banks, including the bank proposing to maintain the community service facility, are located within the area of a circle having a radius of 1500 feet from the maintaining bank, in which case the maintaining bank may establish a community service facility anywhere in such circle, but not closer than 600 feet from the main banking premises of any bank whose main banking premises are outside of such circle without the irrevocable consent of such other bank; and provided that in any case where a community service facility is established pursuant to this subparagraph (iii) closer than 600 feet to the main banking premises of another bank, no other bank whose main banking premises are within such circle shall be required to obtain the consent of the maintaining bank in establishing a community service facility closer to it than 600 feet.
(d) No community service facility shall be closer than 2 miles to any then existing main banking premises of another bank whose main banking premises are located in a municipality of 10,000 or fewer inhabitants (according to the 1980 census) in which the main banking premises of 3 or more banks are located on the effective date of this amendatory Act enacted by the 82nd General Assembly, if:
(i) such community service facility is established by a bank controlled by a bank holding company whose banking region is not the same banking region as the banking region in which the municipality described in this subparagraph (d) is located; and
(ii) such community service facility is established within 7 years of the effective date of this amendatory Act enacted by the 82nd General Assembly.
As used in this subparagraph (d), ‘bank holding company’ and ‘banking region’ have the meanings as established in Sections 2 and 3.01 of The Illinois Bank Holding Company Act of 1957.
If a majority of the banks whose main banking premises are located in a municipality described in this subparagraph (d) irrevocably consent in writing to the establishment of such community service facility, the limitations of this sub-paragraph (d) shall not apply.” Ill. Ann. Stat., ch. 17, par. 311(19) (Smith-Hurd 1981).

Plaintiffs concede that at the time of the adoption of the Constitution of 1970 section 5(15) of the Illinois Banking Act (Ill. Rev. Stat. 1969, ch. 16½, par. 105(15)) authorized the establishment of off-premises facilities which were specifically excepted from the definition of branch banks contained in section 2 of the Illinois Banking Act. They argue, however, that the expanded services authorized by the “community service facilities” fall squarely within the statutory definitions of branch banking that were in effect when article XIII, section 8, was adopted in 1970. They argue further that because under the amendment these facilities may be established anywhere in the same county as the main bank and because of the services which they may render they are branch banks under the statutory definition. They cite People ex rel. Lignoul v. City of Chicago (1977), 67 Ill. 2d 480, as authority for the proposition that the activities proposed to be conducted at the facilities constitute branch banking. We do not agree.

As above noted, limited-service facilities of the type provided for in the amendment effected by the Act were authorized prior to the 1970 constitutional convention. (See Ill. Rev. Stat. 1969, ch. 16½, pars. 102, 105(15).) Senate Bill 1025, approved July 23, 1965, and adopted at the referendum election November 8, 1966, effective January 1, 1967, amended the Illinois Banking Act. It contained substantially the same definition of “branch bank” as does the amendment found in the Act. Senate Bill 1025 also provided for the establishment of facilities and permitted transaction of the same types of business as may be conducted at the facility here under consideration. A review of the proceedings of the 1970 constitutional convention persuades us that the delegates were aware of the distinction between a branch bank and the type of facility here under consideration (see 2 Record of Proceedings, Sixth Illinois Constitutional Convention 1145) and clearly did not intend that the facility be subjected to the restrictions imposed upon branch banking. In view of the history of the distinction drawn by the General Assembly and approved in the referendum, which distinction was not modified in the deliberations of the constitutional convention of 1970, we do not find persuasive plaintiffs’ arguments that the activities proposed to be conducted at the facility constitute branch banking.

People ex rel. Lignoul v. City of Chicago, cited by plaintiffs, does not support their contention. Lignoul is authority only for the proposition that the city of Chicago was not authorized under its home rule powers to permit the establishment of certain banking facilities and electronic banking machines in community locations for the reason that the power to regulate banking is given exclusively to the State and did not pertain to the city’s local government and affairs.

Plaintiffs contend that the General Assembly has delegated to the Federal Reserve Board the power to define branch banking. This, they contend, violates article IV, section 1 (1980), of the Constitution of 1970, which provides:

“The legislative power is vested in a General Assembly consisting of a Senate and a House of Representatives, elected by the electors from 59 Legislative Districts and 118 Representative Districts.”

They argue that the amendment to section 2(d) of the Bank Holding Company Act of 1957, as amended by the Act, effects such invalid delegation. Section 2(d), to the extent here pertinent, provides:

“(d) ‘Bank holding company’ means any company that has control over any bank or over any company that is or becomes a bank holding company by virtue of this Act. For the purposes of this Act, a company controls or has control over a bank or company if *** (4) it directly or indirectly exercises a controlling influence over the management or policies of such bank or company that is a bank holding company and the Board of Governors of the Federal Reserve System has so determined under the Federal Bank Holding Company Act.” Ill. Ann. Stat., ch. 17, par. 2502(d) (Smith-Hurd 1981).

The Act also provides that in certain situations the transferor of shares in a bank shall be deemed to be in indirect control of its transferee “unless the Board of Governors of the Federal Reserve System has determined, under the federal Bank Holding Company Act, that the transferor is not in fact capable of controlling the transferee.” (Ill. Rev. Stat. 1981, ch. 17, par. 2502(d).) They argue that the effect of this legislation is to give the Federal Reserve Board “the power to make branch banking possible by delegating the power to establish the rules and define the circumstances under which subsidiaries of such holding companies will constitute de facto branches.”

Plaintiffs’ argument overlooks the fact that the Act does not purport to confer powers on the Federal Reserve Board which it does not already have under the Federal Bank Holding Company Act of 1956 (12 U.S.C. sec. 1841 et seq. (1976)), applicable to all bank holding companies. There is no merit to their contention that the Act suffers constitutional infirmity because it “delegates legislative authority to Congress and the Federal Reserve Board by automatically incorporating all future amendments to the Federal Bank Holding Company Act as the law of this State.” Unless and until Congress sees fit to amend the provisions of the Federal act the jurisdiction of the Federal Reserve Board will remain unaffected, and the inclusion of the provision in the Act here is a recognition of the existence of dual banking systems and concurrent Federal and State jurisdiction.

Plaintiffs cite a number of authorities from which they argue that the effect of the legislation is to permit de facto branch banking. (Whitney National Bank v. Bank of New Orleans & Trust Co. (D.C. Cir. 1963), 323 F.2d 290, rev’d on other grounds (1965), 379 U.S. 411, 13 L. Ed. 2d 386, 85 S. Ct. 551; Grandview Bank & Trust Co. v. Board of Governors (8th Cir. 1977), 550 F.2d 415, cert. denied (1977), 434 U.S. 821, 54 L. Ed. 2d 78, 98 S. Ct. 64; Independent Bankers Association v. Board of Governors (D.C. Cir. 1975), 516 F.2d 1206; Gravois Bank v. Board of Governors (8th Cir, 1973), 478 F.2d 546; First National Bank v. First Bank Stock Corp. (9th Cir. 1962), 306 F.2d 937; In re Cleveland Trust Co. (1974), 38 Ohio St. 2d 183, 311 N.E.2d 854.) These cases at most demonstrate that there can be abuses under the multibank holding system, but the possibility that there may be violation or misapplication of a statute does not serve to render it invalid (Hoffmann v. Clark (1977), 69 Ill. 2d 402, 427).

In an amicus brief, the Independent Community Banks in Illinois and the Independent Bankers Association of America argue that under Federal law facilities and automatic teller machines authorized by the Act are branches. They cite statistical information to show “that the unit banking structure in Illinois has served the State economy well.” We are urged “to scrutinize the issues raised herein from the broadest possible perspective.” The function of this court is to scrutinize the statute enacted by the General Assembly to determine its validity; its wisdom is not for this court to determine.

Regardless of whether the facilities and automatic teller machines would be branches under Federal law, under the provisions of 12 U.S.C. section 36(c) (1976) a national bank may establish branches only as expressly authorized to State banks within the State where the bank is situated. In view of the express limitations contained in section 36(c) and the express reservation of rights to the States contained in 12 U.S.C. section 1846 (1976) we are not persuaded that there is any necessity to abolish the distinction between branch banking and the operation of facilities such as those authorized in the Act here considered.

In view of our holding that the Act did not authorize branch banking we need not consider whether its enactment complied with the provisions of article XIII, section 8, of the Constitution of 1970.

For the reasons stated the judgment of the circuit court is affirmed.

Judgment affirmed.

JUSTICE SIMON,

specially concurring:

Rather than tackle the difficult issue of what constitutes branch banking, an issue upon which the majority opinion sheds little light, I prefer to rest my decision on my belief that, whatever the nature of the statute in issue, it received the required three-fifths majority of the members voting on the issue.

The 1970 Illinois Constitution provides: “Branch banking shall be authorized only by law approved by three-fifths of the members voting on the question or a majority of the members elected, whichever is greater, in each house of the General Assembly.” (Ill. Const. 1970, art. XIII, sec. 8.) The measure in question received 99 “yes,” 59 “no,” and 12 “present” votes, with seven members not voting in the House of Representatives. It received 34 “yes,” 20 “no,” and three “present” votes, with two members not voting in the Senate. In issue is whether a vote of “present” should be counted in calculating the number of members “voting on the question,” since if they are to be so counted, the bill did not pass either house by the required three-fifths majority.

The 1970 Illinois Constitution does not explain what is meant by “three-fifths of the members voting on the question.” Perhaps the intention was to leave that determination to the legislature, since the Constitution expressly commands that “ [e]ach house shall determine the rules of its proceedings ***.” (Ill. Const. 1970, art. IV, sec. 6(d).) Whether one looks primarily to the intent of the constitutional convention or to the procedure adopted by the houses of the General Assembly, however, the result is the same: a vote of “present” is not a vote on the question.

The 1970 Illinois Constitution provides that a record vote, which is necessary for the passage of any law, is “a vote by yeas and nays ***.” (Ill. Const. 1970, art. IV, sec. 8(c).) No mention is made of votes of “present,” thus indicating that such a vote was not considered to be a true vote at all by the delegates to the constitutional convention. In fact, the parliamentary rules adopted to govern the proceedings of the constitutional convention itself specifically provide that present votes were not to be counted. Rule 72 stated:

“Votes cast as ‘present’ shall be recorded in the Journal as ‘present,’ but such votes shall not be counted in determining the required number of votes on those measures or questions needing the affirmative vote of those ‘present and voting.’ ” 1 Record of Proceedings, Sixth Illinois Constitutional Convention 851.

This was in keeping with established practice before the adoption of the Constitution. In Bunsen v. County Board of School Trustees (1964), 48 Ill. App. 2d 291, the Illinois Appellate Court concluded that a vote of three “yes,” two “no,” and one “pass,” with the president not voting, constituted a majority of those members of the seven-member county board of school trustees “voting on the measure.” I see no distinction between a vote of “pass” and one of “present.” Both signify an abstention from the issue. It would be unrealistic to attribute special properties to one but not the other, and neither should be treated as a vote on the question.

“Voting on the question” has been defined in other States to mean “ ‘ “expressing the will, mind or preference.” ’ ” (Kellams v. Compton (Mo. 1947), 206 S.W.2d 498, 499. Accord, State ex rel. Travers v. McBride (Mo. App. 1980), 607 S.W.2d 851.) In those cases, void votes were held not to be part of the total votes on the question. In Wooley v. Sterrett (Tex. Civ. App. 1965), 387 S.W.2d 734, the court stated that the word “vote” cannot be equated with total failure of choice; therefore, the court held that blank ballots should not be counted in tallying the total number of votes on the issue. I believe these cases are applicable here. A vote of “present,” like a blank ballot, is not an expression of choice.

The major handbook on parliamentary procedure, Robert’s Rules of Order, in the edition available at the time of the constitutional convention, agrees at least insofar as votes of “abstain,” “present,” or blank ballots are concerned. See Rockland Woods, Inc. v. Incorporated Village of Suffern (1973), 40 App. Div. 2d 385, 340 N.Y.S.2d 513 (interpreting Robert’s Rules, 1970 edition, to mean an abstention should not be counted as a vote).

The conclusion must be that the ordinary understanding of the words “members voting on the question” did not include members voting “present.” Sound rules of construction require that the terms be given the same interpretation in the Constitution unless it can be shown that some other meaning was intended. See Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 565.

The rules of procedure in effect in the two houses of the General Assembly also appear to exclude “present” votes from the total number of votes on the question. Because the legislators did not believe the measure in question concerned branch banking, the members were not careful in determining whether a three-fifths majority had been obtained. It seems clear, nevertheless, that under the House rules, a three-fifths majority was obtained. The House adopted temporary rules on January 14, 1981. (Rules of the House of Representatives, 82d General Assembly, House Resolution 5 (Jan. 14, 1981).) No permanent rules were ever adopted. House Rule 52 states:

“A member who answers ‘present’ on a roll call shall be so recorded, but a vote of *present’ shall not be counted in determining the result of the roll call vote.”

(Also, see House of Representatives Table of Extraordinary Vote Requirements.) The plaintiff does not dispute that Rule 52 applies in this case.

The real dispute revolves around the Senate rule. The eighty-second Senate adopted no special rule with regard to “present” votes. Senate Rule 51, however, adopts Robert’s Rules of Order when Senate rules are silent on a question of parliamentary procedure. (Rules of the Senate, 82d General Assembly, Senate Resolution 2 (Feb. 17, 1981).) Robert’s Rules equates a vote of “present” with a vote of “abstain,” stating, “If [a member] does not wish to vote, he answers ’present’ (or ‘abstain’).” (H. Robert, Robert’s Rules of Order Newly Revised sec. 44 (S. Robert ed. 1981). It states further:

“A two thirds vote — when the term is unqualified — means at least two thirds of the votes cast by persons entitled to vote, excluding blanks and abstentions ***.”

The same rule applies to simple majorities. H. Robert, Robert’s Rules of Order Newly Revised sec. 43 (S. Robert ed. 1981).

The plaintiff contends that the rule does not apply in this case because the required majority is qualified by the words “voting on the question.” I do not agree. If anything, those words emphasize the applicability of the general rule. Thus a vote of “present” is not a vote at all for the purpose of determining the result of a vote.

Plaintiff also contends that because previous Senates have counted “present” votes in tallying the number of votes on the question, the same should be done now. During debates on branch banking measures in May of 1977 and again in May and June of 1979, the Senate President repeatedly ruled that “present” votes would be counted in determining whether a three-fifths majority of those voting on the question had been obtained. (Transcripts of 80th General Assembly Regular Session, at 50-51 (May 26, 1977); Transcripts of 81st General Assembly Regular Session, at 195 (May 25, 1979); Transcripts of 81st General Assembly Regular Session, at 166-67 (May 25, 1979); Transcripts of 81st General Assembly Regular Session, at 49 (June 30, 1979).) On one occasion, the President ruled:

“Yes, under Article XIII, Section 8, which provides that branch banking shall be authorized only by law approved by three-fifths of the members voting on the question. We ruled in the past and I’m prepared again to rule today, that a vote Present on the question, when the bill is called, is a vote and will count in the group.”

As I stated in Rock v. Thompson (1981), 85 Ill. 2d 410, 435 (Simon, J., concurring), “Referring to custom to apply past procedures to a new Senate imposes upon the electorate viewpoints they may have voted to replace.” The procedural interpretations of a previous Senate, particularly those contradicting that Senate’s written rules, should not be carried over to contravene the clear meaning of rules adopted by the present Senate.

I therefore find that the new law, whether a branch banking law or not, was properly passed.


author: Mr. Justice SchaeeER

text:
    (No. 33881.
    Jules Gravelot, Appellee, vs. Joseph Skender, Appellant.

      Opinion filed June 15, 1956.

      Hector A. BrouillET, and Aleen H. Meyer, both of Chicago, for appellant.
    William C. Wines, of Chicago, for appellee.
   Mr. Justice SchaeeER

delivered the opinion of the court:

The defendant, Joseph Skender, appeals from a decree of the superior court of Cook County which ordered him to perform his contract to sell real estate to the plaintiff, Jules Gravelot. A freehold is involved.

The contract was executed on April 23, 1946. Defendant agreed to- sell, and plaintiff agreed to buy for $44,000, a three-story brick building containing 11 stores and 40 apartments located at the intersection of Archer Avenue and 33rd Street, in Chicago. The contract provided that defendant was to convey the property to plaintiff or his nominee by warranty deed, subject only to existing leases and the usual stock objections of the title company. Defendant agreed to- deliver to plaintiff within 45 days from the date of the contract an opinion of title, showing good title in the seller, subject to the foregoing exceptions. Plaintiff paid $1000 earnest money to defendant upon the execution of the contract and agreed to- pay $11,000 on or before July 1, 1946, and to execute a mortgage for the balance of $32,000. The contract referred to- defendant and his wife, Frances, as sellers, but the attorneys for the parties deleted her name from the contract, which was signed only by plaintiff and defendant.

An opinion of title showed as objections to defendant’s title delinquent taxes for the years 1928 through 1939, two delinquent special assessment installments, and a trust deed in the amount of $15,000. Defendant’s attorney testified, “I told Mr. Skender under the contract he would have to clear up the title and pay the taxes, and he said he couldn’t do it.” It is now admitted in this court that defendant had it within his power to cancel the trust deed, although defendant testified to the contrary. As to- the taxes, defendant had previously given an attorney a check for $7300 to buy the property at a tax foreclosure sale. The check was paid to- the county collector but for some reason not disclosed in this record the taxes still appeared as objections. In any event, defendant did not clear the title prior to the closing date.

On June 27, 1946, plaintiff’s attorney wrote a letter to defendant’s attorney stating that plaintiff was ready to deposit the $11,000 cash balance on the contract and to- have executed a part purchase money mortgage for $32,000, and that he would like to complete the matter on June 28. On the next day plaintiff’s attorney again wrote to- defendant’s attorney. With this letter he enclosed a deed in trust from defendant and his wife to- Liberty National Bank, as trustee. He stated in his letter that his client was having title conveyed to- the bank, as trustee, and that “a part purchase money mortgage is now being prepared for the Bank to sign.” On July 1, 1946, plaintiff’s attorney was on vacation but plaintiff went to- the office o-f defendant’s attorney and informed him that he was prepared to- close the transaction forthwith. Plaintiff and defendant’s attorney agreed, however, to- continue the matter for ten days to await the return of plaintiff’s attorney.

On July 10, 1946, plaintiff, defendant and their attorneys met at the offices of defendant’s attorney. At this meeting plaintiff tendered two checks, totaling $11,000, payable to Chicago- Title and Trust Company, and also tendered a mortgage for $32,000 executed by the Liberty National Bank, as trustee. According to- plaintiff’s testimony, nothing was said about the form o-f these checks and the mortgage at the meeting. Plaintiff also- testified that at this meeting defendant stated he was not going through with the deal. Defendant’s attorney testified that he told plaintiff and his attorney at the meeting that defendant could not remove the tax and trust deed objections set forth in the letter of opinion; that because these objections could not be satisfied defendant offered to return the $1000 paid by plaintiff, and that plaintiff refused to accept the return o-f the money.

Defendant’s principal contention is that the purchaser was in default under the contract and so was not entitled to- specific performance. This contention is based upon two grounds: first, upon repeated assertions that the evidence discloses that defendant knew that plaintiff was unable to raise the balance of the contract price, and second, upon admitted irregularities in the form of the checks and mortgage tendered on July 10, 1946. So far as plaintiff’s ability to perform his part of the bargain is concerned, the point appears to' have been waived by defendant’s failure to raise it before the master and chancellor. Moreover it is completely without support in the record. There is no testimony to the effect that plaintiff was financially unable to perform. Neither defendant nor his then attorney in their testimony expressed any doubt as to1 plaintiff’s capacity to perform.

The matter of the form of the checks and mortgage tendered by the plaintiff, however, requires consideration. The contract called for the payment of $11,000 in cash and a “part purchase money mortgage executed by the purchaser.” The purchaser tendered $11,000 in checks payable to- the Chicago1 Title and Trust Company, and a mortgage for $32,000 executed by the Liberty National Bank, as trustee. The tender thus made did not comply with the terms of the contract, and defendant urges that for this reason plaintiff is not entitled to specific performance.

The contention is unsound. From undisputed testimony it appears that two' days before the July 1 closing date, defendant’s attorney was informed that plaintiff proposed to take title in a bank, as trustee, and that he would offer, at the closing, a mortgage signed by the bank as trustee. Neither defendant nor his attorney objected to these proposals before July 1. Indeed, there is no1 testimony even suggesting that defendant or his attorney made any objection to' the form of the checks and mortgage when they were presented at the meeting on July 10. Defendant’s attorney testified instead that he “told them Joe Skender could not pay the taxes, the amount due there, and the mortgage I knew was involved. I don’t remember in what manner now, but it was so involved it couldn’t be straightened out.” Failure to complete the sale on July 10 was not due to defects in plaintiff’s tender, but rather to defendant’s unwillingness or inability to- perform. If timely objection had been made, the deficiencies now relied upon could readily have been cured. Cf. Thompson v. Crains, 294 Ill. 270; 1 Restatement of Law of Contracts, sec. 305; Willis-ton on Contracts, sec. 1819.

Defendant argues that he was relieved of the obligation to tender a deed or to- clear up the title because prior to July 1, 1946, the plaintiff made a tender which was inconsistent with the terms of the contract. But as has been pointed out, the defendant waived any defect in the form of the checks and mortgage by failing to object. He was not relieved of the burden of performing his obligations under the contract.

Defendant also maintains that plaintiff failed to- elect to- take whatever interest the defendant could convey, and therefore is not entitled to specific performance. White v. Lang, 401 Ill. 219, and Mitchell v. White, 295 Ill. 135, upon which the defendant relies, involved factual situations far removed from that here presented. In White v. Lang the purchaser had expressly refused-to accept a deed conveying the seller’s interest in the property, and in Mitchell v. White the purchaser failed to comply with a provision in the contract which required him to- give notice of his willingness to take the title as it stood within a specified time. Here the record shows that at the meeting on July 10, plaintiff desired to- perform the contract in accordance with its terms. In view of defendant’s positive refusal to carry out his part of the bargain there was no occasion for plaintiff to state any election at that time. The present action, filed 72 days after that meeting, proclaimed plaintiff’s election to take whatever title defendant could convey, subject to- appropriate deductions for .title defects. That election was timely. Cf. Cities Service Oil Co. v. Viering, 404 Ill. 538; Rost v. Kremin, 308 Ill. 79.

Nor does the record support defendant’s claim that specific performance of the contract in this case would be unconscionable. This claim rests upon the assertion that defendant, a man of limited education, was overreached by plaintiff, who is a real estate man. Defendant was represented by an attorney. His present counsel directs attention to the fact that the name of one of his attorneys was stricken from the rolls of this court in 1946. But there is no suggestion that defendant was not adequately represented throughout. (Cf. Spina v. Spina, 372 Ill. 50; Shulman v. Moser, 284 Ill. 134.) Defendant also pictures huge profits which plaintiff will allegedly gain as a result of the decree of specific performance. Much of this alleged profit is without a basis in the record; much of it occurs as a result of the increase generally in real estate values since 1946, a fact which has m bearing upon plaintiff’s right to specific performance. (See, Cities Service Oil Co. v. Viering, 404 Ill. 538; Keogh v. Peck, 316 Ill. 318; Anderson v. Anderson, 251 Ill. 415.) The gross delay in disposition of the case does not appear to' be attributable to the plaintiff. A decree awarding plaintiff specific performance was entered on January 7, 1953, but it was vacated on defendant’s motion and the matter was tried anew.

Finally defendant urges that the decree is defective in three particulars; in determining the period of the accounting; in failing to allow a right of homestead; and in purporting to- alter the present legal ownership of the property. Plaintiff concedes that the decree erroneously directed an accounting from July 1, 1946, instead of July 10, 1946. Defendant at no1 time claimed a right of homestead for himself or his wife before the master or the chancellor. The claim now raised comes too late. (Angelo v. Aldridge, 164 Ill. 388.) As to’ the third point, a one-half interest in the property was conveyed to' defendant’s wife after plaintiff brought the present action. Her interest in the property was taken subject to the rights of the parties in the pending litigation. Norris v. Ile, 152 Ill. 190; cf. Heckmann v. Detlaff, 283 Ill. 505.

The decree of the superior court of Cook County is modified by changing the date for commencing the period of the accounting from July 1, 1946, to July 10, 1946. In all other respects the decree is affirmed.

Decree modified and affirmed.