author: MR. JUSTICE CLARK

text:
    (No. 54149.
    JEANNE GREENE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Orkin Exterminating, Inc., Appellee).

      Opinion filed November 13, 1981.

      Ralph E. Madsen and Charles W. Clark, of Madsen & Clark, Associates, of Crystal Lake, for appellant.
    Thomas Feehan, of Thomas, Wallace, Feehan & Baron, Ltd., of Joliet, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Jeanne Greene, petitioner, sought a workmen’s compensation award for the death of her husband. An arbitrator for the Industrial Commission found that the petitioner failed to prove that the injuries sustained by the decedent arose out of the employment. The claim for compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) was denied. The Industrial Commission affirmed the arbitrator’s decision, and the circuit court of Kane County confirmed the decision of the Industrial Commission. The claimant has appealed directly to this court. 73 Ill. 2d R. 302(a)(2).

Between the hours of 4:30 a.m. and 7:30 a.m. on March 3, 1978, James Greene was assaulted and killed in the parking lot of the respondent employer, Orkin Exterminating, Inc. (Orkin), where he was employed as a service technician.

Mrs. Jeanne Greene customarily drove her husband to work. They arrived at the Orkin plant on the morning of March 3 at approximately 4:30 a.m. After leaving Greene at the Orkin plant, she proceeded to a restaurant where she worked as a cook. The decedent failed to make his usual stop between 4:50 a.m. and 5:30 a.m. at his wife’s place of employment.

The service manager of Orkin was the first to discover the decedent’s body at about 7:30 a.m. Greene had been stabbed 21 times in both the front and back. The body was lying in the snow close to the decedent’s service vehicle. The vehicle was prepared for service: all of the necessary equipment and chemicals had been loaded inside the truck. The engine was running and the lights were on.

The interior of the truck had not been disturbed. Nothing was missing from the decedent’s person. Nothing had been taken from the Orkin building. There was no indication of any forced entry into the building.

The Orkin plant is located in a combination residential, commercial and light-industry area in Aurora. Prior to Greene’s death, two ladders had been stolen from the general vicinity of the parking lot (October 1977) and a battery had been taken from a vehicle in the parking lot (December 1977). There is no record of any previous attempted break-ins to the Orkin plant in the past 10 years.

The service manager, John Overstreet, testified that on rare occasions the decedent would collect up to a maximum of $50, which would be turned in at the end of the day. Greene did not usually carry money to make change for those customers who paid cash.

The identity of the decedent’s assailant is unknown.

The principal issue before us is whether the Industrial Commission’s conclusion that the decedent’s death did not arise out of his employment with Orkin was against the manifest weight of the evidence. An injury which “arises out of” a person’s employment may be defined as one which has its origin in some risk connected with, or incidental to, the employment so that there is a causal connection between the employment and the injury. (Chmelik v. Vana (1964), 31 Ill. 2d 272.) If the injury results from a hazard to which the employee would have been equally exposed apart from the employment, then it does not arise out of it. State House Inn v. Industrial Com. (1965), 32 Ill. 2d 160.

The petitioner incorrectly relies on Material Service Corp. v. Industrial Com. (1973), 53 Ill. 2d 429, suggesting that the arising-out-of question is one of law which may be reconsidered without deference to the Commission’s decision. In Material Service Corp., an employee drowned in a waterway adjacent to her employer’s parking lot. The lot sloped slightly downward toward an unprotected waterway, not separated by either barricades or guard rails, creating a hazardous situation. The employee’s automobile had plunged into the waterway. The court found that the undisputed circumstantial evidence could not give rise to permissible conflicting inferences on the issue of causation. Here there exist a number of inferences not improbable, unlikely or remote which can be drawn from the circumstantial evidence. The facts give rise to reasonable conflicting inferences. This court may not discard a permissible inference drawn by the Industrial Commission because it might draw another inference from the established evidence. (Sears, Roebuck & Co. v. Industrial Com. (1979), 78 Ill. 2d 231, 234.) Here the decedent’s death is susceptible to the inference that it resulted from a purely personal risk, from a risk common to the public at large, or from a risk incidental to the decedent’s employment. These permissible conflicting inferences present a mixed question of law and fact, and the resolution of such a question should not be disturbed unless it is against the manifest weight of the evidence. Brewster Motor Co. v. Industrial Com. (1967), 36 Ill. 2d 443.

It is uncontested that Greene was “in the course of” his employment when he arrived at Orkin and began to prepare for his daily work routine. But the fact that an injury is incurred in the course of and occurs at the place of employment is not sufficient to establish that the injury “arose out of” employment. (Thurber v. Industrial Com. (1971), 49 Ill. 2d 561, 563.) The burden of showing further that the assault was related to a risk inherent in or incidental to the decedent’s employment duties rests on the petitioner. (Laboy v. Industrial Com. (1978), 74 Ill. 2d 18; Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426.) The petitioner has not met the evidentiary burden of establishing that the decedent’s death “arose out of” his employment.

It is true that an injury resulting from an attack where reasons are not set forth in the record will not necessarily preclude recovery. (Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28.) However, it is equally true that such an observation “should not be construed as permitting an award in every instance where the record fails to unambiguously demonstrate that the motive for the assault was based on personal reasons.” (Schroeter v. Industrial Com. (1976), 62 Ill. 2d 284, 287.) It is the Commission’s function to consider the propriety of the award, and we will not substitute our judgment for that of the Commission unless its findings are contrary to the manifest weight of the evidence. Eagle Discount Supermarket v. Industrial Com. (1980), 82 Ill. 2d 331, 337.

On March 3, 1978, the premises of Orkin remained virtually untouched. The decedent’s personal belongings were intact, and nothing was missing from his service vehicle. The unidentified assailant stabbed Greene 21 times. Such a brutal killing would not appear to be necessary to effectuate any possible theft from either the Orkin plant or the decedent’s person. We cannot say that the Industrial Commission’s finding that the petitioner failed to prove that the injuries sustained by the decedent “arose out of” the victim’s employment was contrary to the manifest weight of the evidence. Accordingly, we affirm the judgment of the circuit court of Kane County.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 54211.
    STEVEN MINER, Appellant, v. THE GILLETTE COMPANY, Appellee.

      Opinion filed November 13, 1981.

      Robert S. Atkins and Kenneth P. Ross, of Freeman, Atkins & Coleman, Ltd.; Paul Bernstein and Henry A. Waller, of Bernstein & Waller; and Harry G. Fins, all of Chicago, for appellant.
    Russell M. Baird, George A. Platz, Shalom L. Kohn, and Sandra L. DeGraw, of Sidley & Austin, of Chicago, for appellee.

      Kevin M. Forde, Ltd., of Chicago (David Kahn, Vincent J. Getzendanner, Jr., and William J. Harte, of counsel), for amicus curiae Consumer Coalition.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Steven Miner, plaintiff, filed a class action complaint in the circuit court of Cook County on behalf of a nationwide class of consumers against the defendant, Gillette Company, in connection with defendant’s promotion of its “cricket” disposable butane lighters. Count I alleged that defendant’s conduct amounted to an “unfair and deceptive act or practice” within the meaning of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121/2, par. 261 et seq.). Count II alleged breach of contract. Defendant moved to dismiss the class action. The motion was denied as to the Illinois class. The trial court dismissed the action brought on behalf of nonresident class members but found the question of law concerning the propriety of maintaining the class action on behalf of nonresident members one “to which there is substantial ground for difference of opinion” and, therefore, certified the issue for appeal pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308). The appellate court initially denied plaintiff’s application for leave to appeal. This court, in the exercise of its supervisory jursidiction, ordered the appellate court to grant plaintiff’s application for leave to appeal. Upon review the appellate court affirmed. (89 Ill. App. 3d 315.) After allowing plaintiff’s petition for leave to appeal, we allowed the Consumer Coalition to file an amicus curiae brief.

The plaintiff argues that neither due process nor the Illinois class action statute precludes an Illinois plaintiff from maintaining a multistate class action in Illinois. Defendant, on cross-appeal, contends that the action cannot proceed under section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.2) on behalf of any class, even if limited to Illinois residents.

The defendant conducted a sales promotion by offering to supply a free Accent Table Lighter (accent lighter) to persons remitting proof of purchase of two “cricket” lighters together with 50 cents for postage and handling. At the time, defendant had approximately 200,000 accent lighters from which it expected to fulfill responses to such offer. However, the response to the offer exceeded defendant’s expectations and, although 70,000 additional accent lighters were assembled, defendant was unable to fill approximately 180,000 requests. Consequently, defendant mailed a letter to each of the 180,000 persons stating that the supply of accent lighters had been exhausted and apologizing for the inconvenience. At the same time, defendant returned to each of this group of persons the 50-cent postage-and-handling charge together with a free “cricket” lighter. Plaintiff was one of the 180,000 consumers.

Plaintiff contends that the due process clauses of the United States Constitution and the Constitution of Illinois do not prevent the maintenance of a class action on behalf of nonresident class members. In the present case, both the trial court and the appellate court relied on Spirek v. State Farm Mutual Automobile Insurance Co. (1978), 65 Ill. App. 3d 440, in holding that absent “minimum contacts” with this State, Illinois courts are without jurisdiction to render a binding judgment over nonresident plaintiffs in a class action suit in that such a judgment would violate due process. The court in Spirek, relying on concepts enunciated in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, stated:

“The due process clause still ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has not contacts, ties, or relations.’” Spirek v. State Farm Mutual Automobile Insurance Co. (1978), 65 Ill. App. 3d 440, 453.

Defendant argues that the trial and appellate courts correctly found that the multistate class action cannot be maintained because of the nonresident class members’ lack of “minimum contacts” with this State. It bolsters its position by referring to language in various United States Supreme Court cases. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154; Hanson v. Denckla (1958), 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228; Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569; World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559.) Plaintiff and amicus do not contend that the relationship of nonresident class members with this State provides sufficient contacts to meet the “minimum contacts” test of International Shoe and its progeny. Rather, it is asserted that the test itself is inapplicable to plaintiffs in a class action case.

The question of whether the “minimum contacts” test is applicable to nonresident plaintiffs in a class action case was addressed in Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 567 P.2d 1292. The court found that International Shoe and the line of cases emanating from it dealt specifically with nonresident defendants.

“Whether all nonresident plaintiffs in a class action are required to have ‘minimum contacts’ with the forum is a different matter. Because a class action must necessarily proceed in the absence of almost every class member, we hold the residential makeup of the class membership is not controlling. [Citation.] What is important is that the nonresident plaintiffs be given notice and an opportunity to be heard and that their rights be justly protected by adequate representation. These are the essential requirements of due process, and they must be satisfied in any class action by every court, state or federal, regardless of the residences of the absent class members. Therefore, while the essential element necessary to establish jurisdiction over nonresident defendants is some ‘minimum contacts’ between the defendant and the forum state, the element necessary to the exercise of jursidiction over nonresident plaintiff class members is procedural due process.” (Emphasis in original.) (Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 542-43, 567 P.2d 1292, 1305.)

(See Schlosser v. Allis-Chalmers Corp. (1978), 86 Wis. 2d 226, 241-42, 271 N.W.2d 879, 886-87.) Moreover, the Supreme Court has recognized class actions as an exception to the rule requiring in personam jurisdiction over a party before he will be bound by a judgment rendered.

“To these general rules there is a recognized exception that, to an extent not precisely defined by judicial opinion, the judgment in a ‘class’ or ‘representative’ suit, to which some members of the class are parties, may bind members of the class or those represented who were not made parties to it. 0<,°
000 Courts are not infrequently called upon to proceed with causes in which the number of those interested in the litigation is so great as to make difficult or impossible the joinder of all because some are not within the jurisdiction or because their whereabouts is unknown or where if all were made parties to the suit its continued abatement by the death of some would prevent or unduly delay a decree. In such cases where the interests of those not joined are of the same class as the interests of those who are, and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a common interest, the court will proceed to a decree.” Hansberry v. Lee (1940), 311 U.S. 32, 41-42, 85 L. Ed. 22, 26-27, 61 S. Ct. 115, 118.

This exception has been recognized and employed by this court in Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583, 592, and Newberry Library v. Board of Education (1944), 387 Ill. 85, 90.

“This exception is made possible by a requirement that the representative parties fairly and adequately protect the interest of the class. aao But adequate representation is not the sole touchstone of due process. There can be threshold findings of adequate representation with notice nevertheless required as a matter of due process to allow members of the class their constitutional opportunity to be heard.” (Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583, 592-93.)

This exception is justified when one examines the nature of a class action suit. Its very purpose is to allow a representative party to pursue the claims of a large number of persons with like claims. It consequently does not contemplate or necessitate the appearance of absent parties. The class action device is, in fact, predicated on the inability of the court to entertain the actual appearance of all members of the class as well as the impracticality of having each member prosecute his individual claim. The basic premise of the class action procedure is the fairness of having a proper representative act on behalf of the absent parties.

The constitutionality of the present class action on behalf of nonresident members must be determined by asking (1) if plaintiff adequately represents the nonresident parties and (2) if notice can insure the class of its constitutional opportunity to be heard and protect each member’s option to choose not to participate.

The test applied to determine adequacy of representation is whether the interests of those who are parties are the same as those who are not joined and whether the litigating parties fairly represent those not joined. (Newberry Library v. Board of Education (1944), 387 Ill. 85, 90.) The attorney for the representative party “must be qualified, experienced and generally able to conduct the proposed litigation.” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 339.) Additionally, plaintiff’s interest must not appear collusive. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 338-39.

In the present case, the claim of plaintiff is identical to that of each of the other class members. Each performed in the identical manner by mailing the required proof of two purchases of “cricket” lighters and 50 cents postage and handling to defendant as required in the promotional offer. Each class member received the same letter of explanation and apology with a 50-cent refund and a free “cricket” lighter. At this stage of the proceedings, there is no evidence that plaintiff’s claim is antithetical to those of other members of the class, nor is there evidence that the suit is a collusive or friendly action. These are matters for the trial court’s future determination.

The question of what notice must be given to absent class members to satisfy due process necessarily depends upon the circumstances of the individual action. (Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583, 593.) We believe that in the present circumstances, where the identity and address of each class member is readily accessible by use of defendant’s files, individual notice is required in order to insure that each class member’s right to pursue his claim is protected. The notice must also inform each class member of his right to “opt out” of the present action and must specify the procedure to accomplish such.

Under the full faith and credit clause of the United States Constitution, a judgment rendered in a State which had proper jurisdiction over the parties must be recognized and enforced in a sister jurisdiction. Absent plaintiffs in a class action suit are bound by such a judgment despite the fact that they were not personally served and did not appear in the rendering court so long as the due process requirements of proper notice and adequate representation were satisfied. Larson v. Pacific Mutual Life Insurance Co. (1940), 373 Ill. 614, 623-25; Hartford Life Insurance Co. v. Ibs (1914), 237 U.S. 662, 670-72, 59 L. Ed. 1165, 1168-70, 35 S. Ct. 692, 695-96.

Once the trial court determines that the due process requirements of notice and adequate representation have been met, the judgment rendered on behalf of the class members — resident and nonresident — will be binding on each, and such judgment will be entitled to full faith and credit. U.S. Const., art. IV, § 1.

Defendant alternatively argues that the present multistate class action cannot be maintained in that it does not meet the statutory requirement of a predominating common question of fact or law. It is defendant’s position that although there may be a common question of fact, it is not the predominating issue in this action. Rather, defendant contends, the individual questions of law relating to each of the 50 States is the predominant focus of the action.

Section 57.2 of the Civil Practice Act provides:

“An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” (Ill. Rev. Stat. 1979, ch. 110, par. 57.2.)

The court has explained the test to be applied under section 57.2(a)(2):

“So long as there are questions of fact or law common to the class and these predominate over questions affecting only individual members of such class, the statutory requisite is met.” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 338.)

Apparently, the appellate court interpreted this section to require both a common question of fact and a common question of law. Although the court found the presence of a predominating question of fact, it further sought the existence of a predominating question of law. The court stated:

On this basis, the appellate court found that the requirements of section 57.2(a)(2) were not satisfied.

Contrary to the interpretation of the appellate court, the requirement of section 57.2(a) (2) is couched in the disjunctive — “common questions of fact or law.” It does not, therefore, require the presence of both a common question of fact and a common question of law. However, the finding of a common question of fact or law cannot alone satisfy the statutory requirement, for such common question must “predominate” over the individual questions that may be involved. We have already found, under the due process analysis above, the presence of a common question of fact for all class members. The next question under the statute is whether this common question of fact predominates over the individual questions of law inherent in the application of the laws of the 50 States. Because the trial court, relying on Spirek, dismissed the class action on behalf of nonresident members on due process grounds, this question was not fully examined.

The class action statute specifically provides for the maintenance of a class action which may be “divided into sub-classes and each sub-class treated as a class.” (Ill. Rev. Stat. 1979, ch. 110, par. 57.3(b).) The feasibility of subdividing a class is properly made by the trial court at a preliminary hearing. (See generally McCabe v. Burgess (1979), 75 Ill. 2d 457, 467.) We believe that the issue of whether the common question of fact or the individual questions of law predominate in the present case is dependent upon plaintiff’s ability to establish that the differing laws of the States are subject to grouping in a manageable number of subclasses. If, after the parties have produced specific evidence relating to this question, the trial court finds that such subclasses of laws may be made, then the common question of fact will necessarily predominate and the statutory requirement will be satisfied.

Defendant, on cross-appeal, contends that the appellate court erred in its finding that a class action may be brought on behalf of Illinois residents. Defendant argues that class action is inappropriate in that the individual claims of plaintiffs are “de minimis” and have already been compromised in a reasonable manner. Defendant also asserts that the existence of individual questions of fact predominate over common questions of fact, contrary to section 57.2(a) (2) of the Civil Practice Act.

Defendant relies on Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, for its contention that class action status should be denied where individual claims are small. In Adams, a class action seeking the refund of cigarette taxes was brought on behalf of persons who purchased cigarettes from the defendant retailer. Although the court found class action to be improper, it did not, as defendant here contends, base such denial solely on the small dollar amount involved in each claim. Rather, the court justified its denial by referring to the vast number of unidentified individuals in the class, the lack of objective corroboration for each claim and the rule of law providing that taxes voluntarily paid cannot be recovered. 63 Ill. 2d 336, 348-49.

In the present case, individuals with potential claims are readily identifiable by examination of defendant’s files. Moreover, the object of the class action procedure is to adjudicate a large number of very small claims in one proceeding. We therefore find no merit to defendant’s contention.

Defendant also argues that its action in refunding the 50-cents postage-and-handling charge and providing each class member with a free “cricket” lighter is proof that the claims have been compromised in a reasonable manner and, thus, defeats the present class action.

The general rule is that, on a motion to dismiss, all well-pleaded facts are accepted as true. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329.) The facts are undisputed that defendant did not remit the accent lighter as promised in its promotion. Any question of compromise is one of fact which must await trial for determination.

Relative to the maintenance of an action on behalf of the Illinois class, defendant claims that common questions of fact do not predominate, in that individual proof is necessary to establish each member’s claim. Defendant contends that the elements of reliance, satisfaction, waiver, and consideration are different in each case and, thus, defeat the requirement of a common question of fact or law under section 57.2(a)(2).

The present case is predicated upon a series of essentially identical transactions by thousands of purchasers, including Illinois residents, which were founded upon and arose out of identical language in the promotional offer prepared by defendant. Unlike in the class of nonresidents, the Illinois class also has a common question of law, that is, the law of Illinois, so that there is no possibility that different questions of law will predominate. Thus, the requirements of section 57.2(a) (2) that there be a predominating common question of fact or law is easily met. Once this basic determination has been made, the fact that there may be individual questions, as proposed by defendant, will not defeat the predominating common question. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 340-41; Barliant v. Follett Corp. (1978), 74 Ill. 2d 226, 234.) Moreover, the individual questions postulated by defendant are mere hypotheticals. This court in Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill. 2d 532, 538, stated:

“But the hypothetical existence of individual issues is not a sufficient reason to deny the right to bring a class action. Where it appears that the common issue is dominant and pervasive, something more than the assertion of hypothetical variations of a minor character should be required to bar the action.”

See K. Forde, Class Actions in Illinois: Toward a More Attractive Forum for this Essential Remedy, 26 De Paul L. Rev. 211, 221 (1977).

For the reasons stated, we affirm that portion of the judgment of the appellate court upholding the trial court’s denial of the motion to dismiss the class action brought on behalf of residents of Illinois but reverse that part of the judgment upholding the trial court’s dismissal of the class action brought on behalf of nonresidents. The judgment of the circuit court is affirmed as to the suit by Illinois residents and reversed as to its dismissal of the action on behalf of nonresidents. The cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.

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

MR. JUSTICE RYAN,

dissenting:

Since the Supreme Court has severely limited the availability of the Federal courts for class action litigation (see Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140; Zahn v. International Paper Co. (1973), 414 U.S. 291, 38 L. Ed. 2d 511, 94 S. Ct. 505; Snyder v. Harris (1969), 394 U.S. 332, 22 L. Ed. 2d 319, 89 S. Ct. 1053), those seeking to litigate consumer claims have been urging the use of State courts in which to maintain multistate plaintiffs class suits. (See Note, Toward a Policy-Based Theory of State Court Jurisdiction Over Class Actions, 56 Tex. L. Rev. 1033 (1978); Note, Multistate Plaintiff Class Actions: Jurisdiction and Certification, 92 Harv. L. Rev. 718 (1979); Comment, Civil Procedure: In Personam Jurisdiction Over Nonresident Plaintiffs in Multistate Class Actions, 17 Washburn L.J. 382 (1978); Ross, Multistate Consumer Class Actions in Illinois, 57 Chi.-Kent L. Rev. 397 (1981); Forde, Class Actions in Illinois: Toward A More Attractive Forum For This Essential Remedy, 26 De Paul L. Rev. 211 (1977).) In fact, partly in response to the Supreme Court decisions above referred to, the National Conference of Commissioners on Uniform State Laws prepared and proposed a Uniform Class Actions Act or Rule. (See Vestal, Uniform Class Actions, 63 A.B.A. J. 837 (1977).) I will refer to this uniform proposal later.

I dissent from the opinion of this court because the assertion of jurisdiction over nonresident class members far exceeds the proposal of the uniform act and far exceeds the holding of any case of which I am aware. The opinion seems to be reaching out to sweep into Illinois all nationwide class litigation which cannot be maintained in the Federal courts because of Eisen, Zahn and Snyder, and which no other State will entertain. As I will point out later, Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 567 P.2d 1292, relied on by the majority in this opinion to support its decision, is not authority for its holding and, in fact, clearly indicates that this action could not be maintained in Kansas.

The majority opinion omits some essential matters from its statement of facts. In this case, the defendant company, Gillette, is a Delaware corporation, with its headquarters in Massachusetts. The responses to the ad for the lighters were directed to Spott International, a “fulfillment house” in Minnesota. No aspect of the promotion took place in Illinois other than those aspects seeking responses from persons in this State. The 180,000 requests for the accent lighters which could not be filled came from persons in every State of the United States, the District of Columbia, Puerto Rico, and Canada. About 12,000 unfilled requests came from people in Illinois.

My colleagues found that the “minimum contact” requirement for a court to entertain jurisdiction over nonresident defendants is not applicable to nonresident plaintiffs in a class action. The opinion then lifted some language from the Kansas case of Shutts v. Phillips Petroleum Co. referred to above, and found that the only element necessary to the exercise of jurisdiction over nonresident plaintiffs is procedural due process, which would be satisfied by notice to the nonresident plaintiffs and adequate representation of their interests. I submit that more is required.

It is interesting to note that the proposed uniform act retains the “minimum contact” concept for jurisdiction of members of the class whether the action is brought on behalf of a class of plaintiffs or against a class of defendants. Section 6 of the proposed act provides for jurisdiction over a member of a class if “a basis for jurisdiction exists or would exist in a suit against the person under the law of this State.” National Conference of Commissioners on Uniform State Laws, Uniform Class Actions [Act] [Rule] § 6 (1976); Vestal, Uniform Class Actions, 63 A.B.A. J. 837, 838 (1977); Scher, Opening State Courts to Class Actions: The Uniform Class Actions Act, 32 Bus. Law. 75 (1976).) I realize that the Illinois class action legislation is not patterned after the uniform act. However, the jurisdictional provisions of the uniform act indicate that the “minimum contacts” jurisdictional requirement is not a relic of the past and enjoys substantial present-day support.

Admitting that a departure from the “minimum contacts” requirement is permissible, I, nonetheless, maintain that this State must have a certain nexus with the claims of the absent class members before our courts can extend their jurisdiction beyond the borders of this State. It must be remembered that, by entertaining class actions, Illinois is not simply conferring benefits on the absent class members. It is also binding the absent class members by the judgment rendered in the courts of this State, and it is depriving these absent class members of the right to litigate their claims in the courts of their own States. The mere extending of procedural due process is not by itself sufficient to justify litigating here the rights of those who have no contact with Illinois. In addition to procedural due process, this State must have an interest in the litigation.

In this respect, the majority opinion has misread Shutts v. Phillips Petroleum Co. In that case the defendant had withheld certain royalty payments on natural gas to the owners of royalty interests in a gas-producing area known as the Hugoton-Anadarko rate-making area until a final determination of the rates. When the determination was made, the defendant made the payments that had been withheld, but paid no interest. The class action was brought to collect the interest on the withheld payments. All of the State of Kansas, as well as parts of the States of Oklahoma and Texas, comprised the Hugoton-Anadarko area. Kansas comprised the largest portion of the area. The trial court, in Shutts, determined “that this court having jurisdiction of a large physical portion of the Hugoton-Anadarko area is a convenient forum for such action.” Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 539, 567 P.2d 1292, 1303.

In addition to noting the interest of the State of Kansas in the payment of royalties on natural gas extracted from that area, the Shutts court also likened the case to one involving a common fund. Had the defendant placed the withheld payments in a trust fund separate from its operating funds, the court stated that the case would “dovetail nicely into the ‘common fund’ cases.” (Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 552, 567 P.2d 1292, 1311.) The court held that the fact the defendant had commingled the funds with its own would not take the case out of the “common fund” category. The court stated that a class action may be binding on nonresident plaintiffs when a “common fund” is involved and where due process requirements are met. (Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 552, 567 P.2d 1292, 1311.) Kansas clearly had an interest in the litigation, and the Shutts case does not hold that extending due process requirements alone confers jurisdiction on the State courts over nonresident plaintiffs. In Shutts, the court also discussed Feldman v. Bates Manufacturing Co. (1976), 143 N.J. Super. 84, 94, 362 A.2d 1177, 1182, which held that without “affiliating circumstances” between the forum State and the litigation, the judgment in a plaintiff’s class action suit could not bind nonresident class members. In Shutts, the court stated that Feldman was an excellent example of a factual situation in which a judge should deny certification of a class action where nonresident class members are involved. The facts in Feldman are strikingly similar to those in our case. The nonresident plaintiffs had no contacts in New Jersey, and that State had no interest in the litigation.

Illinois clearly has an interest in providing a forum wherein its citizens may seek redress for a wrong. Thus, a class action on behalf of resident members of the class is justified. Also, if the defendant had its corporate headquarters in Illinois, or if the solicitation had directed that money be sent to an entity in this State in response to the ad, Illinois would have had some interest in seeing that any wrong arising out of such a solicitation was rectified. But I fail to see any justification for attempting to litigate a claim in Illinois that someone residing in Puerto Rico, Canada, the District of Columbia, or any of the othér 49 States has against a Delaware corporation with its headquarters in Massachusetts, when the money solicited was sent to a Minnesota entity. “[T]he crystallized issue simply is whether it is fair, as a policy matter, to permit the forum to resolve the dispute vis-a-vis the nonresidents.” (Note, Toward A Policy-Based Theory of State Court Jurisdiction Over Class Actions, 56 Tex. L. Rev. 1033, 1048 (1978).) Mr. Justice Brennan emphasized the policy-based nature of the inquiry, stating the “cases fairly establish that the State’s valid substantive interests are important considerations in assessing whether it constitutionally may claim jurisdiction under a given cause of action.” (Shaffer v. Heitner (1977), 433 U.S. 186, 222-23, 53 L. Ed. 2d 683, 709, 97 S. Ct. 2569, 2589 (Brennan, J., concurring in part and dissenting in part).) Although a State has an interest in protecting the rights of its citizens, it has no duty to protect, or interest in protecting, the rights of citizens of other States. It has been asserted that jurisdiction in class actions will not be upheld where the nonresident has no contact whatever with the particular State. (Note, Multistate Plaintiff Class Actions: Jurisdiction and Certification, 92 Harv. L. Rev. 718, 731 (1979).) Absent a nonresident plaintiff’s contact with the forum State, or that State’s interest in the litigation, it is doubtful if the judgment in the class action would be binding on nonresident plaintiffs or that it would be given full faith and credit or would be res judicata in another action against the same defendant by the absentee plaintiffs. This is particularly true where the forum State, in its eagerness to entertain the class action, undertakes to apply and construe the law of the State of residence of nonresident plaintiffs. Such conduct has the potential for undermining the ability and the right of other States to regulate transactions within their borders. Multistate Plaintiff Class Actions: Jurisdiction and Certification, 92 Harv. L. Rev. 718, 731-33 (1979).

We must consider with the above reasoning the correlative question: Why should the court system of this State assume the burden of adjudicating and administering a class action of this complexity when Illinois has no connection with the litigation beyond that of protecting its residents? Class actions of this magnitude are time consuming and difficult to manage. They constitute unusual burdens on an already burdened court system. (Tornquist, Road Map to Illinois Class Actions, 5 Loy. Chi. L.J. 45, 47 (1974); Comment, Consumer Class Actions With A Multistate Class: A Problem Of Jurisdiction, 25 Hastings L.J. 1411, 1448 (1974).) Even in Shutts the court expressed concern about overburdening the Kansas court system by entertaining class actions in which that State did not have an interest. Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 557, 567 P.2d 1292, 1314.

I also wish to point out that the court in Shutts stated: “When liability is to be determined according to varying and inconsistent state laws, the common question of law or fact prerequisite [in our statute] will not be fulfilled.” (Shutts v. Phillips Petroleum Co. (1977), 222 Kan. 527, 557, 567 P.2d 1292, 1314.)

This language forms the basis for another disagreement I have with the majority opinion. In some States a mass promotional scheme, as is involved in our case, is viewed as an offer. (See Oliver v. Henley (Tex. Civ. App. 1929), 21 S. W.2d 576.) Whereas, in other States such an advertisement is viewed only as an invitation to make an offer. (See People v. Gimbel Bros., Inc. (1952), 202 Misc. 229, 115 N.Y.S.2d 857.) Under the holding of Shutts, in the language quoted above this difference would destroy the commonality necessary to the maintenance of a class action under the contract theory under count II of the complaint in our case, whether or not the courts of this State can take judicial notice of and apply the law of other States. (See Ross, Multistate Consumer Class Actions In Illinois, 57 Chi.-Kent L. Rev. 397, 418-22 (1981).) The holding of Shutts, the case relied on in the majority opinion, makes a class action on behalf of the nonresident plaintiffs inappropriate in this case.

Count I of the complaint is based on the Illinois Consumer Fraud and Deceptive Rusiness Practices Act (Ill. Rev. Stat. 1979, ch. 121/2, par. 261 et seq.). I just cannot understand how, under the facts of this case, a resident of Puerto Rico, Canada, the District of Columbia, or any of the other 49 States can possibly have a right to recover under the Illinois statute. The majority opinion speaks of grouping the laws of the various States into a “manageable number of subclasses.” (87 Ill. 2d at 18.) It is not clear whether or not the majority, in making this statement, is referring to consumer fraud laws of other States. However, the plaintiff argues in its brief for the application of the consumer fraud laws of the other jurisdictions. Count I of the complaint, however, appears to be based on the Illinois statute and not those of other States. Even if it were proper, under the pleadings of this case, to attempt to apply the consumer fraud statutes of other jurisdictions, it must be acknowledged that these statutes differ substantially and the plaintiffs’ rights under such statutes will not be the same. For example, some consumer fraud statutes do not permit a private cause of action or permit one only under certain circumstances. (See Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93.) Under the holding of Shutts, this would destroy the common interest necessary for the maintenance of a class action. It appears to me that, in a case where Illinois has no interest, we are reaching out and dragging into this State nonresident litigation from 49 other States, Puerto Rico, the District of Columbia, and Canada, and are usurping the authority of the courts of those other jurisdictions to provide a forum for the protection of the rights of their citizens.

I not only view the majority opinion as usurping the authority of other jurisdictions, but I also see it as imposing a needless burden upon our judicial system accompanied by the imposition of needless expenses upon the taxpayers of this State. The opinion speaks of grouping the classes into a “manageable number of subclasses.” (87 Ill. 2d at 18.) Of course, any litigation is manageable if sufficient resources are devoted to it. At a time when the judicial system of this State, and especially that of Cook County, is striving to eliminate unacceptable delay in the disposition of cases, we should not needlessly add this additional burden and the burden of other multistate class actions that will surely follow as a result of this opinion.

One of the requirements of our class action statute is that the trial court find that “[t]he class action is' an appropriate method for the fair and efficient adjudication of the controversy.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 57.2(a)(4).) Upon remand I suggest that the trial court seriously consider the fairness of depriving other jurisdictions of the right to protect their own citizens under the circumstances of this case and likewise consider whether it is an efficient utilization of the resources of this State to litigate claims in which Illinois has no interest. In determining whether the action is manageable, the court should consider not whether it is manageable by the use of unlimited resources, but whether it is reasonably manageable under the circumstances of this particular case.

MR. JUSTICE UNDERWOOD joins in this dissent.


author: MR. JUSTICE RYAN

text:
    (No. 54046.
    ELOUISE WILSON et al., Appellants, v. ALL-STEEL, INC., Appellee.

      Opinion filed November 13, 1981.

      Peter R. Meyers, of Chicago, for appellant Elouise Wilson.
    James C. Franczek, Jr., and Marian C. Haney, of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee.
    Tyrone C. Fahner, Attorney General, of Springfield (J. Stuart Garbutt, special assistant Attorney General, of Chicago, of counsel), for appellant Department of Human Rights.
    Demetrius E. Carney, of Lafontant, Wilkins & Butler, and Alan S. Gilbert, Patricia A. Greenfield, Les Jin, and Joan M. O’Shaughnessy, all of Chicago, for amici curiae NAACP et al.

    Ann P. Sheldon, Susan W. Wanat, and John M. Cannon, of Chicago, for amici curiae Chicago Association of Commerce and Industry and Mid-America Legal Foundation.
    Charles R. McKirdy and Brian W. Bulgar, of Pope, Ballard, Shepard & Fowle, of Chicago, for amicus curiae Midwest Industrial Management Association.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, Elouise Wilson, was employed by the defendant, All-Steel, Inc., as a final assembler in a manufacturing plant that produced metal furniture. After being so employed for slightly more than one month, she was discharged on July 6,1977. The stated reasons for her termination were that she failed to obey company rules regarding the wearing of safety glasses, as well as her apparent inability to handle the physical requirements of the job. On August 17,1977, Elouise Wilson, who is black, filed a charge with the Fair Employment Practices Commission (FEPC). The FEPC previously existed pursuant to the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.).That statute has been repealed and replaced by the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1 — 101 et seq.), which incorporates substantially all of the provisions previously found in the Fair Employment Practices Act. Plaintiff, in her charge filed with FEPC, alleged that her termination was both sexually and racially discriminatory.

On January 12, 1979, the FEPC issued a complaint in the cause and set the matter down for a hearing. Since the complaint was not issued within 180 days after the filing of the charge, as required by statute (Ill. Rev. Stat. 1977, ch. 48, par. 858.01), the defendant filed a motion to dismiss the complaint as untimely. This motion was denied, and following a hearing before a hearing examiner, a finding recommending certain relief was entered in favor of the plaintiff. On review, the full commission dismissed the complaint in response to recent decisions of this court holding that the 180-day period in which the Commission “shall 080 issue and serve a complaint” is mandatory. See Board of Governors v. Illinois Fair Employment Practices Com. (1979), 78 Ill. 2d 143; Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61.

In 1978 the Illinois General Assembly amended the Fair Employment Practices Act to include section 8.01a (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a). That section, which became effective on September 16, 1978, created a new cause of action for those persons whose claims had been barred by administrative delay. That section provided:

“In the case of any charge of an unfair employment practice which has been properly filed with the Commission prior to March 30, 1978, which has not been settled or adjusted by conference and conciliation under Section 8, and which within 180 days thereafter has not been the subject of a complaint issued by the Commission or an order that no complaint be issued, the person filing the charge may seek appropriate injunctive or other relief by filing an action in the circuit court of the county where the alleged unfair employment practice occurred, and if the person prevails in such action the court may award such person costs and reasonable attorneys’ fees. The Commission shall notify all such persons by registered mail of their right to seek such relief and any such action must be initiated in the circuit court within 2 years of the receipt of such notice, notwithstanding any other statute of limitations imposed on such actions.” Ill. Rev. Stat. 1979, ch. 48, par. 858.01a.

The substance of this section is now found in the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 9 — 102(B)). Elouise Wilson filed suit in the circuit court of Kane County alleging that she was a person acquiring a right of action under this section. The complaint prayed for relief almost identical to that originally recommended by the FEPC hearing examiner. The defendant challenged the constitutionality of section 8.01a by filing a motion to dismiss, which alleged that the effect of the statute was to deprive All-Steel of equal protection of the laws and to take its property without due process by reviving a previously barred cause of action in violation of the United States and Illinois constitutions. Further, the motion alleged that section 8.01a constituted prohibited special legislation under article IV, section 13, of the 1970 Constitution of Illinois. The Department of Human Rights (successor to the FEPC) was granted leave to intervene and filed several documents in support of the plaintiff’s position opposing the defendant’s motion. The trial court found section 8.01a “unconstitutional for the reasons submitted in defendant’s motion” and entered an order dismissing the complaint. A direct appeal was taken to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)).

We hold that section 8.01a, currently section 9 — 102(B) of the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 9 — 102(B)), constitutes prohibited special legislation and violates the equal protection and due process clauses of the Constitution of the State of Illinois.

In Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, the subtle distinctions between the concepts of equal protection and special legislation were discussed:

“Special legislation confers a special benefit or exclusive privilege on a person or a group of persons to the exclusion of others similarly situated. (Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 109-110.) It arbitrarily, and without a sound, reasonable basis, discriminates in favor of a select group. Such legislation differs from ‘local laws’ because it is not limited to a geographical portion of the State. (Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 109; G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 206 (1969).) Special legislation differs from a violation of equal protection in that the latter consists of arbitrary and invidious discrimination against a person or class of persons. It results from the governmental withholding of a right, privilege or benefit from a person or a class of persons without a reasonable basis (or, where a fundamental right or suspect classification is involved, a compelling State interest) for doing so. Whether a law is attacked as special legislation or as violative of equal protection, it is still the duty of the courts to decide whether the classification is unreasonable in that it preferentially and arbitrarily includes a class (special legislation) to the exclusion of all others, or improperly denies a benefit to a class (equal protection). (See Anderson v. Wagner (1979), 79 Ill. 2d 295, 315.) While certain pieces of legislation may be attacked as both special legislation and violative of equal protection since they confer a benefit on one class while denying a benefit to another, there will be many cases where a benefit is conferred on one class to which no other class has a right. In those cases, legislation would be attacked as special legislation but not as violative of equal protection.” (Emphasis in original.) (Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 137-38.)

In the case at bar, the defendant has raised and argued both a violation of our equal protection and special legislation clauses. We note that section 8.01a creates a new and limited remedy where none previously existed. Also, it denies to the defendant herein certain defenses available to employers similarly situated against whom complaints were filed after March 30, 1978.

There can be no question but that the legislature has broad discretion in passing statutes designed to remedy what it perceives to be undesirable results reached under existing law. To this end, the General Assembly may make classifications and draw distinctions upon any rational basis. (Hoffmann v. Clark (1977), 69 Ill. 2d 402, 425; King v. Johnson (1970), 47 Ill. 2d 247, 250; Conlon Brothers Manufacturing Co. v. Annunzio (1951), 409 Ill. 277, 285; Bowers v. Glos (1931), 346 Ill. 623, 630-31.) These classifications will be upheld so long as they do not violate constitutional guarantees. Prior to the adoption of the 1970 Constitution, this court’s review of legislative action in most cases of “special legislation” was limited to a comparison of the enactment in question with the constitutional list of prohibited areas in which the legislature could not act specially. (See Anderson v. Wagner (1979), 79 Ill. 2d 295, 312-14; Ill. Const. 1870, art. IV, § 22.) However, under the 1970 Constitution, the General Assembly is placed under a duty to pass only general laws, wherever possible, and the task of deciding whether this duty has been discharged is specifically designated as a matter for judicial determination. (Ill. Const. 1970, art. IV, § 13.) Although our courts may now be viewed as possessing a much wider range of review over legislative enactments, the standard to be applied has not been altered. (S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 76-77; Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 110.) Our court has held that the special legislation section of the Illinois Constitution allows differential treatment among similarly situated persons if the classification made bears a rational relationship to a legitimate legislative purpose. Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 124; Anderson v. Wagner (1979), 79 Ill. 2d 295, 315; Youhas v. Ice (1974), 56 Ill. 2d 497, 500; People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 363-64; Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 111.

In the case at bar, the evil sought to be cured by section 8.01a (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a) arises from the fact that the 180-day provision of section 8.01 (Ill. Rev. Stat. 1977, ch. 48, par. 858.01) has been held to be a mandatory requirement which must be complied with and that no complaint can be issued by the FEPC beyond the specified period (Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61). Claimants under the Act might therefore lose their right to recover due to administrative delay. In Springfield-Sangamon County, the 180-day period was likened to a statute of limitations in its effect, and it was held that the running of the period deprived the Commission of the power to act on the claim. (Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61, 68-69.) The reason for holding this period mandatory rather than directory was that the court recognized an employer has a right to an expeditious determination of his liability under the Act. Periods of inactivity on behalf of the FEPC would tend to hamper the remedial and reconciliatory procedures which underlie the very purpose of the Fair Employment Practices Act. The statutory time period, chosen by the legislature, seeks to balance the rights of an aggrieved individual who has suffered supposed discrimination against the rights of those charged under the Act to have a prompt determination of the validity of the claim lodged against them. Recause section 8.01a of the 1979 act operates to circumvent the 180-day period and consequently the purpose which it serves, there must exist a rational basis for the classification which creates a cause of action in favor of those who filed charges with the FEPC prior to March 30, 1978, and whose rights under the Act were lost because of administrative delay. Prior to March 30, 1978, the Fair Employment Practices Act provided:

“Whenever such a charge of an unfair employment practice has been properly filed, the Commission, within 180 days thereof or within any extension of that 180 day period agreed to in writing by all parties and approved by a member of the Commission, shall either issue and serve a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and the respondent.” (Ill. Rev. Stat. 1977, ch. 48, par. 858.01(a).)

Public Act 80 — 1452, effective September 16,1978, removed this requirement from section 8.01 of the Act (Ill. Rev. Stat.

1977, ch. 48, par. 858.01) and inserted its provisions in section 8(d) of the Act, rephrasing it to read:

“The Commission shall, within 180 days after the expiration of the 120 day period specified in paragraph (b), 000 either issue and serve a complaint 00<‘ or shall order that no complaint be issued.” (Ill. Rev. Stat. 1979, ch. 48, par. 858(d).)

The 120-day period specified in paragraph (b) related to the Commission convening a fact-finding conference within 120 days of the filing of the charge. Thus, after September 16, 1978, the effective date of Public Act 80 — 1452, the Commission had 300 days; 120 days provided in paragraph (b), plus 180 days provided in paragraph (d), or an extension thereof, as provided in the Act, within which to file a complaint. These provisions were repealed effective July 1, 1980, by Public Act 80 — 1216 and their subjects incorporated in the Illinois Human Rights Act. After July 1, 1980, the time limit provisions of the Illinois Human Rights Act provided:

“When a charge of a civil rights violation has been properly filed, the Department, within 300 days thereof or within any extension of that period agreed to in writing by all parties, shall either issue and file a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and the respondent.” (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7 — 102(G).)

Under the provisions of the Illinois Human Rights Act, the Department has 300 days after the charge is filed to file a complaint against the employer, as the Commission did under the Fair Employment Practices Act after its amendment effective September 16, 1978.

In summary, before March 30, 1978, and after that date until September 16,1978, an employee would lose the rights provided in the Fair Employment Practices Act if the Commission did not file a complaint within 180 days, or an extension thereof, as provided in the Act, after the employee filed a charge of unfair labor practices. After September 16, 1978, the employee would lose those rights if no complaint was filed within 300 days of the date the employee filed the charge. However, by virtue of section 8.01a of the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a), now section 9 — 102(B) of the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 9 — 102(B)), only those employees who had filed their charges prior to March 30,1978, and whose claims were barred because of inaction by the Commission during the 180-day period prescribed in the Act can file an action in the circuit court. Those employees whose claims were filed after March 30,1978, and which are subsequently barred due to administrative delay have no right to maintain an action in the circuit court. It is true that, due to the subsequent amendment, claims will not be barred until 300 days instead of 180 days after the charge is filed; however, the Commission did not file its complaint in plaintiff’s case until after 17 months after the plaintiff had filed her charge with the Commission. A similar delay in case of a charge filed after the effective date of the amendments would bar the filing of the complaint, and the aggrieved employee would not have a right to maintain a cause of action in the circuit court.

Article IV, section 13, of our constitution provides:

“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.” (Ill. Const. 1970, art. IV, § 13.)

We have not been informed of any sound basis, in reason or principle, for creating a cause of action for those whose claims have been filed before March 30,1978, and barred by lapse of time and not similarly favoring those whose claims were filed after March 30, 1978, and have been barred by lapse of time. A general law giving to all whose claims under the acts have been barred a right to maintain an action in the circuit court could have been made applicable, and would have provided the relief apparently thought desirable, to people who are in the plaintiff’s class, as well as to those whose charges were filed after March 30, 1978.

In Skinner v. Anderson (1967), 38 Ill. 2d 455, this court held invalid section 29 of the Limitations Act (Ill. Rev. Stat. 1965, ch. 83, par. 24f), which purported to immunize architects and contractors from liability upon causes of action that did not accrue within four years of performance of their services. After noting that the statute need only be reasonably related to the legislative purpose, the court further commented that “where that relationship was nonexistent the statute has been held to contravene the constitutional provision [against special legislation]. [Citations.]” (Skinner v. Anderson (1967), 38 Ill. 2d 455, 460.) The court also stated:

“ ‘That the statute operates uniformly upon all members of a class created as the beneficiaries of the act is not the sole test to be applied, but in order to avoid the constitutional inhibition 000 it must also appear that there is a sound basis, in reason and principle, for regarding the class of individuals as a distinct and separate class for the purpose of the particular legislation.’ [Citation.]” (Emphasis added.) Skinner v. Anderson (1967), 38 Ill. 2d 455, 461.

The converse of the above involves the effect of section 8.01a of the Fair Employment Practices Act on an employer. Those against whom a complaint was filed before March 30, 1978, may be required to defend an action in the circuit court even though the claim against them under the Act has been barred. This is true no matter how many years before March 30,1978, the charge may have been filed, because the statute creating the cause of action does so “notwithstanding any other statute of limitations imposed on such actions.” (Ill. Rev. Stat. 1979, ch. 48, par. 858.01a.) As to those employers against whom a charge is filed after March 30, 1978, no complaint against them can be filed in the circuit court at any time. Applying the rationale of Board of Governors v. Illinois Fair Employment Practices Com. (1979), 78 Ill. 2d 143, and Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61, if no administrative action is taken within 300 days from the date of the filing of the charge, the employer would be protected from any further claim arising out of the alleged unfair practice. There does not appear to be a rational basis for subjecting one employer to an open-end type of liability, whereas an employer against whom a charge is filed after March 30,1978, remains subject to liability for the same type of conduct for no more than 480 days. (The charge must be filed by the employee with the Commission within 180 days of the unfair practices, and the complaint must be filed by the Commission within 300 days after the charge is filed.) (Ill. Rev. Stat. 1979, ch. 48, pars. 858(a), (b), (d).) Those employers against whom a charge was filed before March 30, 1978, are, by the provisions of this Act, denied equal protection of the law.

We also hold that section 8.01a violates the defendant’s due process rights by attempting to revive a previously barred cause of action. In Campbell v. Holt (1885), 115 U.S. 620, 29 L. Ed. 483, 6 S. Ct. 209, the United States Supreme Court held that where a statute of limitations runs to bar a remedy but does not operate to affect the right, a defendant acquires no vested interest in the running of the period so that a subsequent legislative enactment which removes the bar does not deprive him of due process under the Federal Constitution. The distinction made by the court in Holt was based upon the fact that where a statute runs against land or personal property, as in the case of adverse possession, the right and title to the property itself is lost in favor of the defendant. However, where a procedural bar is imposed against pursuit of an otherwise valid claim, the running of a limitations period leaves the underlying right intact. The reasoning of Holt was expressly rejected by this court in Board of Education v. Blodgett (1895), 155 Ill. 441. In Blodgett, this court recognized that “[t]he immunity from suit which arises by operation of the Statute of Limitations is as valuable a right as the right to bring the suit itself. It is a right founded upon a wise and just policy. Statutes of limitation are not only calculated for the repose and peace of society, but to provide against the evils that arise from loss of evidence and the failing memory of witnesses. It is true that a man may plead the statute when he justly owes the debt for which he is sued; and this has led the courts to adopt strict rules of pleading and proof to be observed when the defense of the statute is interposed. But it is, nevertheless, a right given by a just and politic law, and, when vested, is as much to be protected as any other right that a man has.” (155 Ill. 441, 449-50.) Blodgett has consistently been cited with approval by this court in subsequent decisions. (WilsonRaymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 53; Arnold Engineering Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, 163; Country Mutual Insurance Co. v. Knight (1968), 40 Ill. 2d 423, 428; People v. Lansing (1966), 35 Ill. 2d 247, 250; Hogan v. Bleeker (1963), 29 III. 2d 181, 187; People ex rel. Endicott v. Prather (1931), 343 Ill. 443, 448.) The proposition that a limitations defense which has fully accrued vests a property right in the defendant entitled to due process protection is a general rule followed by many jurisdictions. See Annot., 79 A.L.R.2d 1080, 1082-90 (1961); Annot., 46 A.L.R. 1101 (1927); Annot., 36 A.L.R. 1316 (1925); 51 Am. Jur. 2d Limitations of Actions § 28, at 612, § 44, at 624-26 (1970).

In the instant case, although the mandatory provision of section 8.01 has not been labeled a statute of limitations, it most certainly operates as such in favor of the defendant once the period has run. Moreover, as we have previously discussed at length, the 180-day requirement was included in section 8.01 for the specific purpose of conferring a benefit upon a person charged under the Fair Employment Practices Act. Under these circumstances, there can be no doubt that once the period had run in this case, All-Steel acquired a vested right which the legislature could not thereafter take away consistent with article I, section 2, of the 1970 Constitution of the State of Illinois.

For the above reasons, the judgment of the circuit court of Kane County is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 54510.
    THE CITY OF EAST PEORIA, Appellee, v. GROUP FIVE DEVELOPMENT CO. et al. (Community College District No. 514, Appellant).

      Opinion filed November 20, 1981.

      Harrod Law Firm, P.C., of Eureka (Samuel G. Harrod and Daniel M. Harrod, of counsel), for appellant.
    Mishael O. Gard, and Frederick A. Johnson, of Swain, Johnson & Gard, of Peoria, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The City of East Peoria (City) filed a petition to construct a local improvement for road purposes across land partly owned by the appellant, Community College District No. 514 (District). The circuit court of Tazewell County dismissed the City’s petition. The appellate court reversed and remanded (90 Ill. App. 3d 729), holding that sections 9 — 2—14 and 9 — 2—15 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1977, ch. 24, pars. 9 — 2—14, 9 — 2—15) authorized the City to take public property for the purpose of a local improvement. We granted leave to appeal.

There is but one issue: May the City, under the Code, condemn property already devoted to a public use?

Pursuant to an ordinance adopted on January 2, 1979, the City sought to construct a new four-lane highway as a local improvement. Construction of the highway would be financed by a special assessment. The proposed improvement would extend over two miles of land, part of which was owned by the District, a body corporate and politic of the State of Illinois.

The City filed a petition in the circuit court requesting, inter alia, that the court ascertain the just compensation for property to be taken or damaged in connection with the local improvement. One of the party defendants was the District. Pursuant to the District’s motion to dismiss, the court dismissed the City’s petition on the ground that it lacked authority to condemn public property for local improvements. The city’s subsequent motion to vacate this order was denied, and it appealed.

The appellate court held that the legislature could, and did, authorize the taking of public property by one governmental unit from another. It did so on the basis that in 1933, the legislature amended sections of “An Act concerning local improvements” (Act) to include the words “or public” property.

The District argues that property already devoted to a public use cannot be taken unless the legislature expressly, or by necessary implication, indicates this intent.

The City contends that the legislature, by including the words “or public,” expressed a clear intent to allow municipalities to condemn property devoted to public use. It asserts there is no other reasonable explanation for including the words “or public.”

When originally adopted, the Act provided for the assessment of just compensation where a municipality condemned private property for the purpose of local improvements. The Act was interpreted as only granting authority for the taking of private property. (City of Moline v. Greene (1911), 252 Ill. 475, 479.) Subsequent cases adhered to this rule. (See, e.g., City of Chicago v. Roth (1929), 334 Ill. 132, 134.) Since the taking power under the Act was deemed general, public property could not be subject to condemnation. “The general rule is, that such [public] property cannot be taken and appropriated to another and different use unless the legislative intent to so take it has been manifested in express terms or by necessary implication.” (City of Moline v. Greene (1911), 252 Ill. 475, 477; see Department of Public Works & Buildings v. Ells (1962), 23 Ill. 2d 619, 620.) Although the Act did not provide for the taking of public property, there was no question that the legislature had authority to allow municipalities to condemn property devoted to a public use. 252 Ill. 475, 477. See City of Edwardsville v. County of Madison (1911), 251 Ill. 265, 267.

In 1933, the legislature amended certain sections of the Act so as to insert the words “or public” to modify the word “property.” The amended provisions, inter alia, were codified in the 1961 Code as sections 9 — 2—14 and 9 — 2—15. These sections provide, in relevant part:

“If the ordinance provides for improvements which require the taking or damaging of property, the proceeding for making just compensation therefor shall be as described in Sections 9 — 2—15 through 9 — 2—37. Such a proceeding also shall be governed by the remaining sections of this Division 2, so far as not in conflict with Sections 9 — 2—15 through 9 — 2—37.” Ill. Rev. Stat. 1977, ch. 24, 9 — 2—14.
“Whenever any local improvement ordinance is passed by the corporate authorities of any municipality, to be paid for wholly or in part by special assessment, or by special taxation, the making of which will require that private or public property be taken or damaged for public use, the municipality, either in that ordinance or by subsequent order, shall designate some officer to file a petition in the circuit court of the county in which the municipality is situated 000. Such petition shall be filed in the name of the municipality, praying that steps may be taken to ascertain the just compensation to be made for private or public property to be taken or damaged for the improvement or purpose specified in the ordinance, and to ascertain what property will be benefited by the improvement, and the amount of those benefits.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 24, par. 9 — 2—15.

It is well settled that, in construing a statute, the language should be given its plain and ordinary meaning. (Franzese v. Trinko (1977), 66 Ill. 2d 136, 139.) The intent of the legislature should be determined and given effect. (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) In ascertaining legislative intent, courts may consider subsequent amendments to a statute. People v. Bratcher (1976), 63 Ill. 2d 534, 543.

In light of the amendments allowing just compensation for the taking of public property, it seems clear that the legislature intended to provide for the condemnation of property already devoted to a public use. Contrary to the District’s assertion, it is unnecessary for the legislature to spell out each type of public property that may be subject to condemnation. It is reasonable to assume that the legislature intended to confer a broad power of eminent domain. This intent should not be defeated by labeling the power “general” instead of “specific.” The legislature knew the court’s interpretation of the Act prior to 1933. To overcome the interpretation and expand the powers of condemnation, it deliberately inserted the words “or public.” Further, if the statute was applicable only to private property, the phrase “or public” would be meaningless. “[A] ‘statute should be so construed, if possible, that no word, clause or sentence is rendered meaningless or superfluous.’ ” (City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 376, quoting People ex rel. Barrett v. Barrett (1964), 31 Ill. 2d 360, 364-65.) We therefore conclude that sections 9 — 2—14 and 9 — 2—15 of the Code expand municipalities’ power of condemnation to include public property.

The District contends that allowing one public body to condemn the property of another will lead to abuses of the power granted, for which the relevant Code sections provide no remedy. This argument is without merit. When a public body seeks to take property already devoted to a public use, courts are empowered to consider the reasonableness of the taking (see City of Chicago v. Municipal Engineering & Contracting Co. (1920), 292 Ill. 614, 618), and to correct any clear abuses of authority (City of Peoria v. Cowen (1927), 326 Ill. 616, 621; cf. Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 325 (same principle under the Illinois Highway Code)).

Accordingly, the judgment of the appellate court is affirmed, and the cause is remanded to the circuit court of Tazewell County for further proceedings in accordance with the views expressed herein.

Affirmed and remanded.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 54094.
    MARGARITO FLORES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Brake Parts Manufacturing Company, Appellee).

      Opinion filed November 20, 1981.

      Joseph M. Tobias, of Chicago, for appellant.
    Kane, Doy & Harrington, of Chicago (Arthur O. Kane and Howard W. Phillips, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Margarito Flores, filed a claim under the provisions of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) seeking an award of total and permanent disability for back and leg injuries which he alleged arose out of an accident on March 22, 1976, during the course of his employment with respondent, Brake Parts Manufacturing Company. Following a hearing, the arbitrator found that respondent had provided claimant necessary first aid, medical, surgical and hospital services and entered an award for 204/7 weeks’ temporary total disability and 40 additional weeks for complete and permanent loss of use of 20% of the left leg. On review, after hearing additional testimony, the Industrial Commission affirmed the arbitrator’s decision, and the circuit court of McHenry County confirmed the Industrial Commission. Claimant appealed directly here pursuant to Rule 302(a)(2) (73 Ill. 2d R. 302(a) (2)), urging that the evidence compelled a finding of permanent and total disability, and that the Commission’s decision is therefore against the manifest weight of the evidence.

Claimant had previously sustained accidental injuries to his lower back and legs in December of 1974 while employed as a machine operator by Brake Parts. Those injuries resulted in hospitalization and a laminectomy to remove two ruptured spinal discs. He remained under doctor’s care but returned to work in October 1975 under a 25-pound weight limitation. His light duties consisted of packaging small parts, placing them in boxes, and loading the boxes on a conveyer belt. He continued to experience pain and in December, pursuant to his physician’s advice, remained off the job for one week of rest. In January 1976, an arbitrator awarded him medical expenses and compensation for temporary total disability plus 60% total and permanent loss of use of the right leg for the December 27, 1974, injury. The Commission affirmed that award, and no further review was sought.

On March 22,1976, while lifting boxes onto the conveyer belt, claimant fell to the cement floor, resulting in the present claim for additional injury to his back. He was taken by ambulance to the emergency room of McHenry Hospital, where he was examined, X-rayed, given pain pills and released. He has not since returned to work at Brake Parts.

At the time of the arbitration hearing in October 1976, claimant had seen his physician, Dr. Ramon Gamez, on several occasions and had again been hospitalized ip June 1976. During his hospital stay, a myelogram indicated that he had a defect in the lumbar region at L4-L5, with a narrowed canal at L5 and SI. Dr. Gamez, in his discharge summary, stated that the most likely diagnosis in view of the prior surgery was a scar lesion at L4-L5. The radiologist’s report indicated that the extradural impression at the L4-L5 level on the right presumably represented a herniated intervertebral disc, and that a review of the prior myelogram, which was taken just before the February 1975 operation, demonstrated that there then existed a lateral extradural impression at the L4-L5 level on the right. Dr. Gamez advised claimant to again undergo surgery, but claimant decided to think it over and was thereafter discharged from the hospital.

On September 3, 1976, claimant was examined by Dr. Irwin Barnett, one of the physicians who had examined him in 1975 following his prior injury. In his 1976 report Dr. Barnett diagnosed a herniated disc syndrome and a flattening of the 4th and 5th lumbar disc space; in his 1975 report, he had also diagnosed a herniated disc syndrome (in the post-operative, state) and a flattening of the 4th and 5th lumbar disc spaces. In his 1976 report Dr. Barnett indicated that there was evidence of severe restriction of motion in the lumbar spine; in his 1975 report, he stated that claimant had marked restriction of all motion in the lumbar spine region. In his 1976 report, Dr. Barnett opined that claimant had a loss of use of both lower extremities; in his 1975 report, he believed claimant had a loss of use of the right lower extremity and a loss of use of the left lower extremity on an industrial basis. Neither report indicated that claimant had a permanent and total disability or was permanently unemployable. In his 1976 report, Dr. Barnett expressed the belief that claimant had sustained traumatic aggravation of his preexisting disc problems. The objective findings in the two reports were not significantly different.

At respondent’s request, claimant had been examined by Dr. Sid John Shafer on August 13, 1976. Dr. Shafer’s findings were somewhat different from Dr. Barnett’s. Dr. Shafer reported that claimant walked with a normal though guarded gait and stood on his heels and toes in a normal manner. The doctor indicated that there was limited motion of the lumbosacral spine in all directions, but that the amount of limitation was very difficult to evaluate because of claimant’s great apprehension and failure to cooperate. He also stated that claimant had questionable limited straight leg raising and good function of the lower extremity joints. He advised that claimant attempt to increase his activities and against an operation.

At the hearing before the same arbitrator who presided at the hearing on the original injury, claimant was the only witness to testify. Speaking through an interpreter, claimant recounted the events leading up to the 1976 incident and testified that thereafter the pain in his back and legs was more severe and constant and that it had now located in both his left and right leg. He stated that he remained at home for the most part, took aspirins and pain pills, wore a brace, walked with a cane, and was unable to work. He further stated that he could not walk or drive for any appreciable length of time and that the pains increased with a change in the weather. He also testified that he occasionally helped with household chores, including vacuuming, washing dishes and cooking, and would sometimes drive his pickup truck to bring his children home from school. He further stated that after the checks for temporary total disability had ceased, he called Brake Parts to inquire whether his job was still available and was told that he could return when the doctor told him that he was feeling well enough.

On cross-examination claimant admitted that during the prior hearing concerning the 1974 accident he testified that he continued to have pain in his back and legs, that he took aspirin and pain pills frequently, that it was painful to walk or drive for any length of time, and that the pain increased with a change in the weather. He also stated that he had seen Dr. Gamez in March of 1976 and had obtained a prescription for pain pills to alleviate continued pain in his back and legs. On redirect examination, claimant testified, consistently with his direct testimony, that prior to the second injury his left leg felt fine; it was the right leg that caused him continued pain. He also stated that the amount of time spent with household chores was limited to very short intervals.

Further evidence introduced on his behalf concerning his medical condition included the June 1976 hospital report containing the results of the second myelogram and Dr. Gamez’ findings, Dr. Barnett’s September 3, 1976, report, and a 1975 report by Dr. C. J. Zurfli stating that claimant was an individual with a persistent radiculitis, but that a more definite diagnosis was not possible without further study. Respondent thereafter introduced Dr. Barnett’s 1975 report and Dr. Shafer’s 1976 report.

On review by the Industrial Commission, claimant called Dr. Barnett as a witness. Dr. Barnett had not reexamined him subsequent to the September 3, 1976, report wherein he indicated that claimant had a loss of the use of both lower extremities. On the basis of his two previous examinations and hypothetical facts presented by claimant’s attorney, Dr. Barnett testified that claimant was totally disabled and unemployable. On cross-examination, the doctor conceded that his 1976 findings were essentially the same as those reported in 1975. It was his opinion that the 1975 findings alone indicated an unlikelihood that claimant could have returned to work. He did agree, however, that he had examined men with equally severe findings who had returned to work; he believed that such men had a high tolerance for pain, whereas he found that claimant had an extremely low tolerance for pain.

Claimant also testified on review. He stated that he continued to take medication to alleviate the increasing pain to his back and legs, and that he had twice unsuccessfully attempted to return to work. Once he began driving a pickup truck for a restaurant, but he testified that he could not continue to drive and on his first day turned the wheel over to his helper. On a second occasion, he attempted to assist his friend in a butcher shop, but shortly after arriving he had to leave because of pains in his legs.

Claimant also introduced the medical records of the Rehabilitation Institute of Chicago, where he had undergone a series of examinations during the week of January 11, 1977, for the purpose of determining his eligibility for the Institute’s three-week low back and pain program. Claimant seems to argue that the Rehabilitation Institute’s finding that he was not a candidate for their program confirms Dr. Barnett’s testimony that claimant is totally and permanently disabled. The Institute’s reports do not so state. The reports contain favorable impressions regarding claimant’s attempt to cooperate and his willingness to pursue the program, but the several examiners consistently expressed a concern over the language barrier. They believed that special arrangements were necessary, including the use of an interpreter, but that even with an interpreter explanation regarding the behavioral approach to the program would not be easily understood by claimant or his wife if she had decided to participate in the spouse’s program. Dr. Robert Addison, the attending physician, concluded:

“SUMMARY: This patient appears to have an arachonoiditis. Because there is a question of his ability to adjust to the group program and his language comprehension it appears that he would not be able to adjust to the behavior modification program. Alternatives for him would be to see a local anesthesiologist for epidural steroids and to start in a physical therapy mobility program. It would also be of great benefit for him to obtain the services of a Spanish speaking counselor to explain the connections between emotions and pain. At the moment he does not appear to be a candidate for our type of program.”

It is, of course, the province of the Industrial Commission to determine the factual issue of the extent and permanency of an employee’s medical disability. (John v. Industrial Com. (1980), 81 Ill. 2d 145, 151; Gates Division, Harris-Intertype Corp. v. Industrial Com.(1980), 78 Ill. 2d 264, 270.) The Industrial Commission must evaluate all of the evidence, including the testimony and medical records adduced (Veritone Co. v. Industrial Com. (1980), 81 Ill. 2d 97, 103-04), judge the credibility of witnesses (Watts v. Industrial Com. (1979), 77 Ill. 2d 30, 34; Scott v. Industrial Com. (1979), 76 Ill. 2d 183), resolve conflicts, and draw reasonable inferences and conclusions from the facts (Goldblatt Bros. v. Industrial Com. (1979), 78 Ill. 2d 62, 67). Though a court might draw different inferences, it is axiomatic that the Commission’s factual evaluations will not be disturbed on review unless they are contrary to the manifest weight of the evidence. O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249, 253; Phelps v. Industrial Com. (1979), 77 Ill. 2d 72, 75.

None of the medical reports in this case stated that claimant was totally and permanently disabled. Although Dr. Barnett testified on review that in his opinion claimant was permanently unemployable, he also conceded that his earlier findings were equally severe and would have, in his opinion, precluded further work by claimant. Claimant nevertheless returned to work following his first injury. The meaning and weight to be attributed the doctor’s testimony were for the Commission to determine. (Swift & Co. v. Industrial Com. (1972), 52 Ill. 2d 490, 495.) It is clear that claimant reinjured his back in March 1976, but the extent to which he aggravated his preexisting condition is not at all clear. The Commission could have determined, based upon the evidence adduced, that the prior award had already compensated claimant for the major portion of his injuries. In view of the evidence tending to establish that there were no significant differences between his condition before and after his second injury, we do not consider that the Commission’s determination affirming the arbitrator and awarding petitioner compensation for an additional 20% loss of use of the left leg was against the manifest weight of the evidence.

We accordingly affirm the judgment of the circuit court of McHenry County.

Judgment affirmed.