author: MR. JUSTICE WARD

text:
    (No. 52277.
    IRVING O’DETTE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Sears, Roebuck & Company, Appellee).

      Opinion filed March 21, 1980.

      Raymond Lannon, Ltd., of Chicago (Raymond L. Lannon and Patricia C. Lannon, of counsel), for appellant.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Daniel P. Socha, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Irving O’Dette filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for the total loss of vision in his left eye, which he said was caused by an accident that arose out of and in the course of his employment by Sears, Roebuck & Company (Sears). An arbitrator’s award for permanent and total disability was reversed by the Industrial Commission, and its decision was confirmed by the circuit court of Lake County. The claimant has brought a direct appeal to this court under Rule 302(a). 73 Ill. 2d R. 302(a).

At the time of the claimed injury O’Dette, who had been employed by Sears for 13 years, worked in a warehouse where he inspected and repaired furniture. This work involved the lifting of tables and other pieces of furniture weighing between 25 and 700 pounds. Before he had been employed by Sears the claimant had lost the sight of his right eye as a result of an industrial injury.

On April 8, 1975, the claimant testified that, while lifting a 100-pound cocktail table from its carton, he suffered a disturbance in the left eye. He described this as a “black line, the size of a quarter. It looked like a half circle, with a little tail on it in the other direction, and it would not go away, and it felt kind of weird when it happened.” This incident took place toward the end of the workday. The claimant did not report it to his foreman. He testified he spoke with Dr. Gerald Dominique, an opthamologist, about it that evening and was examined by him the next day. It appears that no particular treatment was prescribed and the claimant returned to work two days later.

He testified that one month later, on May 13, while tipping a large pine dining-room table towards him, he felt a terrifying sensation in his left eye and that “all of a sudden” he could not see as well as before the incident. But, as on April 8, he made no report to his supervisor. The claimant testified that, though his vision was somewhat blurred, he managed to drive home.

The next day he again consulted Dr. Dominique, who referred him to two opthamologists specializing in retinal disorders, Dr. Harold Wilder and Dr. Charles Vygantas. They diagnosed the claimant’s condition as a detached retina. In view of the extensive equatorial degeneration of his retina and the presence of numerous retinal tears, immediate surgery was recommended. Between May 20 and October 17, 1975, the claimant underwent five operations, which included four scleral buckling procedures and a vitrectomy in an attempt to correct the retinal detachment. The operations were unsuccessful. A report of Dr. Wilder dated March 10, 1977, stated:

“All of these procedures proved not to be fruitful because the retina remains detached and the vision remains at a level of no light perception. It is our feeling that the patient has undergone unsuccessful surgery and this will probably be the permanent status of this left eye.”

This appeal presents the question of whether the Commission’s finding that the claimant did not suffer an injury arising out of and in the course of his employment on May May 13 was against the manifest weight of the evidence.

At the hearing before the arbitrator it was shown that the claimant had a history of medical problems involving the left eye. In 1971 surgery was required to remove a cataract. He later developed glaucoma, which had been treated with medication until the May 1975 incident. In May of 1974 the claimant was in an auto collision, and though he testified that this did not affect his eyesight, there was evidence which suggested that his vision became blurred for a time immediately after the accident. He again complained of blurred vision in October of 1974 and received treatment for the condition.

The only medical witness at the arbitrator’s hearing was Dr. Abraham Schultz, an opthamologist, who testified on behalf of the claimant. He said that though he had treated patients with detached retinas during his military service he now refers such cases to opthamologists specializing in this medical field. In response to a hypothetical question, Dr. Schultz stated that indirect trauma resulting from strenuous job activity could have caused the detached retina. When asked for the basis of his opinion, the witness said that he was relying upon the claimant’s own testimony that he suffered a sudden loss of vision immediately after tipping the large pine table on May 13.

The record, however, shows there was other medical evidence later admitted before the Commission. In a report dated March 10, 1977, Dr. Wilder, who had operated on the claimant, said:

“He also states that his heavy lifting during his job was the cause of his retinal detachment but I cannot see this being a causative factor. It is true that Mr. O’Dette had widespread equatorial retinal degeneration and this undoubtedly is the reason for the retinal detachment occurring on a spontaneous basis.”

Dr. Vygantas, who also had performed surgery on the claimant, in a report stated that while “strenuous physical activity and straining have been the cause of retinal detachment,” he could not say with any certainty whether there was such a causal connection in the claimant’s case.

Too, Sears observes that though Drs. Schultz, Wilder and Vygantas generally agree that the detached retina was suffered in May of 1975, none of the medical records contain any reference to or a complaint by the claimant of a work-related injury. Though there is some suggestion that Sears was aware that the claimant was experiencing eye difficulties that might have been work related, it does not appear that the claimant filed any accident report with Sears prior to filing his application for adjustment of claim with the Commission in August of 1975. He knew that making a report was a company rule when accidental injuries were sustained.

Sears also introduced into evidence a health insurance form which had been completed by Dr. Dominique. In response to a question on the form as to whether the claimant’s injury arose out of his employment, Dr. Dominique responded “no.” This form was signed by the claimant on September 2, 1975, though concededly at this time he was totally blind.

In a workmen’s compensation proceeding the claimant has the burden of proving by a preponderance of the evidence the elements of his claim and, in particular, that his injury arose out of and in the course of his employment. (Johnson Outboards v. Industrial Com. (1979), 77 Ill. 2d 67; Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28.) It is the function of the Industrial Commission to decide questions of fact and causation (Stewart Warner, Datafax Corp. v. Industrial Com. (1979), 76 Ill. 2d 464; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10), to judge the credibility of witnesses (Watts v. Industrial Com. (1979), 77 Ill. 2d 30; Sahara Coal Co. v. Industrial Com. (1977), 66 Ill. 2d 353), and to resolve conflicting medical evidence (Health & Hospitals Governing Com. v. Industrial Com. (1979), 75 Ill. 2d 159; Moore v. Industrial Com. (1975), 60 Ill. 2d 197). Though a court might draw different inferences from the evidence, it is axiomatic that findings of the Industrial Commission will not be reversed unless they are against the manifest weight of the evidence. Phelps v. Industrial Com. (1979), 77 Ill. 2d 72.

Upon a review of the evidence we cannot say that the Commission’s finding that the claimant’s injury did not arise out of and in the course of employment is contrary to the manifest weight of the evidence. We affirm the judgment of the circuit court of Lake County.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE WARD,

license: Public Domain

text:
    (No. 52251.
    OSCAR MAYER & CO., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Paul Winkleman, Appellant).

      Opinion filed March 21, 1980.

      Calandrino, Logan & Robeson, of Springfield (J. Jay Robeson, of counsel), for appellant.
    Rammelkamp, Bradney, Hall & Dahman, of Jacksonville (Larry D. Kuster, of counsel), for appellee.
   MR. JUSTICE WARD,

delivered the opinion of the court:

Paul Winkleman was injured on July 8, 1975, when a piece of welding slag struck his left eye while he was repairing machinery at Oscar Mayer & Co. in Beardstown, where he was employed. An arbitrator awarded compensation for a permanent and total loss of 10% of the vision in the left eye, and the Industrial Commission affirmed. The circuit court of Morgan County set aside the decision of the Commission, and Winkleman filed a direct appeal to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

The medical evidence submitted to the arbitrator and the Industrial Commission was set out in reports from three physicians who had examined the claimant over a period of two years. The record shows that Dr. Alfred G. Schultz, who examined the claimant upon a referral from the claimant’s treating physician one week after his injury, found a large central corneal abrasion and that the corrected visual acuity in the left eye was 20/300. The abrasion was treated with a cycloplegic medication and antibiotics. After about one month of treatment, the corneal abrasion had cleared and the claimant’s corrected vision, using his preaccident eyeglass prescription, was almost 20/20. With a new prescription it was corrected to 20/20.

In his medical report Dr. A. George Schultz III expressed doubt that the accident was responsible for the need to change the claimant’s prescription, and he stated that he could not detect any permanent visual defect or injury. Dr. Walter L. Frank, however, who examined the claimant in September 1975, noted a possible traumatic cataract and found a corrected visual acuity of 20/25, which in January of 1976 had improved to 20/20. In a later report in October 1976, Dr. Frank stated the uncorrected vision to be 20/25. It is unclear on what date this testing was made.

The claimant testified that his eye chronically “matters,” that his eyelids are “sticky,” and that bright light causes him to lose vision in his left eye. These complaints appear in the record of proceedings before the arbitrator but are not mentioned in the reports of Drs. Schultz or Frank. The record does show that the claimant did seek treatment for these conditions from Dr. A. M. Paisley in June of 1977, prior to the review hearing before the Industrial Commission. Dr. Paisley’s report also noted the formation of a small cataract in the left eye.

It is the function of the Commission to decide questions of fact and to determine the extent of disability, including loss of vision (Walker v. Industrial Com. (1978), 72 Ill. 2d 408; Shockley v. Industrial Com. (1979), 75 Ill. 2d 189; Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 290), and its decision will not be reversed unless it is contrary to the manifest weight of the evidence. This is so though a court might have drawn different inferences from the evidence. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240; Illinois Valley Irrigation, Inc. (1977), 66 Ill. 2d 234.) We consider that the circuit court erred in reversing the Industrial Commission’s decision. We do not judge that its finding was contrary to the manifest weight of the evidence we have outlined.

The respondent says that there is no showing of a post-accident difference in vision and that this court in Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230, said that if the claimant did not use glasses the difference between his uncorrected vision before and after injury is the measure of damages. If he wore glasses, the difference between his corrected vision before and after injury is the measure. The answer to this contention, however, is that there was evidence of a difference in uncorrected vision and, further, the comment from Motor Wheel cited by the respondent was not intended to be a statement of the standard to be used in determining the extent of loss of use of an eye.

This court has uniformly held that “the loss of use of the eye is a question of fact in each Case and is not one to be determined by mechanical measurement as to corrected vision or uncorrected vision.” (Walker v. Industrial Com. (1978), 72 Ill. 2d 408, 413.) In Lambert v. Industrial Com. (1952), 411 Ill. 593, it was laid down that in determining the extent of loss of sight or use of an eye one should not measure by the standard of vision as corrected or uncorrected alone. The reason given for this was:

“[N] either rule is adequate to cover all cases. If naked vision, alone, is considered, the worker with corrected vision is not adequately protected, and if corrected vision, alone, is considered, the worker with uncorrected vision is not fully protected. In the first instance, the loss of an eye ‘industrially blind’ with naked vision, but normal with correction, would not be compensable; in the second, an injury rendering a normal eye industrially blind would not be compensable if it could be corrected to normal by the use of glasses.” 411 Ill. 593, 604.

In Motor. Wheel we made clear our adherence to the holding in Lambert. The comment from Motor Wheel on which the respondent relies was not intended as a full statement of the standard of injury or loss. The extent of injury or loss of use is a question of fact to be determined by the Industrial Commission without its being restricted to a standard of uncorrected or corrected vision.

For the reasons given, the judgment of the circuit court of Morgan County is reversed and the award of the Industrial Commission is reinstated.

Judgment reversed; award reinstated.


text:
    (No. 51958.
    EUGENE ROSS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Western Electric Co., Appellee).

      Opinion filed March 21, 1980.

      Eugene Ross, pro se, appellant.
    Kane, Doy & Harrington, of Chicago (Arthur O. Kane, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Eugene Ross, a sealer and furnace operator employed by Western Electric Company, filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.) for permanent injuries allegedly sustained on two occasions during the course of his employment. An arbitrator, after a hearing, concluded that the claimant had suffered an accidental injury which arose out of and in the course of his employment, but he denied an award on the ground that he failed to prove any consequent disability. The Industrial Commission affirmed the denial of compensation, and the circuit court of Cook County confirmed the decision of the Commission. The claimant has brought a direct appeal to this court under Rule 302(a)(2). 73 Ill. 2d R. 302(a)(2).

At the hearing before the arbitrator the claimant testified that on December 31, 1971, while attempting to bend a 20-foot electrical cable out from under the cable guard in order to seal it, the cable broke loose and struck him in the lower part of his back. He said that he felt an immediate numbness and upon informing his supervisor of the incident was taken directly to the company’s hospital. After receiving medication from a company nurse he returned to work and completed his shift. The claimant testified that he was examined the next day by Dr. Milton Glascoe, and on January 6, 1972, was admitted to Walther Memorial Hospital, where he was placed under the care of a private physician. He remained at the hospital for two weeks and convalesced at home for two to three weeks. He returned to work in February of 1972.

The claimant testified that on returning to Western Electric he initially was given lighter duties but several weeks later he was reassigned to his regular duties as a sealer and furnace operator. He said that on July 18, while opening an oven door to bake a cable, it too broke loose from the cable guard and struck him in the same lower region of the back. The claimant has not returned to work since this incident. He contends that his inability to work and his current permanent disability were directly caused by the December 1971 and July 1972 injuries to his back and that the Industrial Commission erred in affirming the arbitrator’s decision denying an award.

The question here is whether the Commission’s finding that the claimant did not suffer a disability from the accidents was contrary to the manifest weight of the evidence.

The record reveals that the claimant has experienced back difficulties since 1955, which on several occasions have required hospitalization as well as continuous use of a back brace. He was admitted to Walther Memorial Hospital in January of 1972 complaining of chronic stomach pains, which were later diagnosed as due to an ulcer, and of back problems. The earliest medical record which pertains to the claimant’s back condition after the December and July incidents which was submitted into evidence is dated October 2, 1972. A report by Dr. Irwin Barnett stated that X rays indicated a degenerative arthritic condition of the spine caused by a flattening of the fifth lumbar disc, which also gave rise to a herniated disc syndrome with secondary bilateral nerve root irritation. The record shows from testimony by the claimant and his treating physician, Dr. Herman Neal that the claimant was involved in a car accident in February of 1973 and that one month later he was hospitalized for a collapsed lung. In a medical report prepared by Dr. Neal in April of that year he stated that the claimant’s degenerative spinal arthritis “could have been activated” by the car collision. Dr. Neal also stated on cross-examination that he filled out another medical report, admitted as evidence in a personal injury suit filed by the claimant, which stated that he considered the claimant to be permanently disabled as a direct result of the February car accident and of the collapsed lung suffered one month later. The claimant is presently unemployed and is receiving pension benefits from Western Electric as well as regular medical treatment for his back from Dr. Neal.

Though there is some evidence to suggest that the claimant’s condition might have been aggravated by the December 1971 and July 1972 injuries, the record clearly shows that the degenerative arthritic state of the claimant’s spine has existed over an extended period of time and may have been aggravated by circumstances unrelated to his employment. The question of whether a claimant’s disability is attributable to a degenerative condition or to an aggravation of a preexisting condition because of an accident is a question of fact to be decided by the Industrial Commission. (International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1.) A finding of the Commission will not be disturbed on review unless it is contrary to the manifest weight of the evidence, even though a court might draw different inferences from the same evidence. (Phelps v. Industrial Com. (1979), 77 Ill. 2d 72.) Upon reviewing the evidence, we conclude that the Industrial Commission’s finding that the claimant failed to prove he had sustained compensable injuries which arose out of and in the course of his employment was not contrary to the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 52286.

      In re FREEDMAN THOMPSON, a Minor, Appellee (The People of the State of Illinois, Appellant).

      Opinion filed March 21, 1980.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald Mackay and Thomas E. Holum, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Mary Ellen Dienes, and Kathleen Warnick, Assistant State’s Attorneys, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and Kenneth L. Jones, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The circuit court of Cook County found that Freedman Thompson, a minor, had violated his probation, and committed him to the Department of Corrections. The minor appealed, and the appellate court reversed (71 Ill. App. 3d 1114) by means of a Rule 23 order (73 Ill. 2d R. 23). We allowed the State’s petition for leave to appeal.

On March 17, 1976, a petition for adjudication of wardship was filed in the circuit court of Cook County, juvenile division, charging the minor with auto theft and criminal trespass to a vehicle. At a hearing on March 18, 1976, the minor admitted the offenses, a finding of delinquency was entered, and the minor was made a ward of the court. On May 6, 1976, the minor was placed on probation for six months. The period of probation was to terminate on November 4, 1976. A supplemental petition was filed by the State on November 4, 1976, alleging that on November 3, 1976, the minor had, for a second time, committed the offenses of auto theft and criminal trespass to a vehicle. (Ill. Rev. Stat. 1975, ch. 38, pars. 16—1(a), 21—2.) Upon the motion of the State, the trial court set the matter for trial, stating:

“All right. Motion State 11/18/76, subpoena; set for trial. Hold in custody. Extend probation.”

The matter was subsequently continued to, and heard on, November 23, 1976. The court made a finding of delinquency on both counts of the supplemental petition, and ordered that the minor continue as a ward of the court. At a dispositional hearing on December 16, 1976, the court committed the minor to the Department of Corrections.

The issue presented is whether a trial court may revoke a minor’s probation where the violation occurred prior to the expiration of the period of probation but the hearing and finding of delinquency occurred afterward. The State contends that the statutory provision in question, section 5—3(6) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 705—3(6)), requires only that the violation occur prior to expiration of the period of probation. Otherwise, argues the State, if a violation of probation occurs during the last few days of a minor’s probation, a hearing would have to be held in a hurried fashion, without adequate time to prepare. The minor responds that the express language of the statute requires that, in order to revoke probation, not only the violation, but also a hearing and a finding of a violation, must take place prior to the expiration or termination of the period of probation. Moreover, the minor argues that this precise issue was resolved by our recent decision in In re Sneed (1978), 72 Ill. 2d 326.

Section 5—3(6) provides:

“After a hearing, the court may modify or enlarge the conditions of probation or of conditional discharge. If the court finds that the minor has violated a condition at any time prior to the expiration or termination of the period of probation or conditional discharge, it may continue him on the existing disposition, with or without modifying or enlarging the conditions, or may revoke probation or conditional discharge and impose any other disposition that was available under Section 5 — 2 at the time of the initial disposition.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 37, par. 705-3(6).)

We think that this provision must be read to mean that only the violation must occur prior to the expiration or termination of the period of probation. The modifying clause, “prior to the expiration or termination of the period of probation or conditional discharge,” does not refer to the phrase “After a hearing,” or, “If the court finds”; rather, it refers to the phrase “violated a condition.” In short, we think the rule of reddendo singula singulis, or the rule of the last antecedent, should apply to this provision, so that the clause requiring an occurrence prior to the end of probation refers only to its appropriate antecedent, which is whether a violation has occurred. See 2A Sutherland, Statutes and Statutory Construction sec. 47.26 (4th ed. 1973); Black’s Law Dictionary 1442 (4th ed. 1951); United States v. Pritchett (D.C. Cir. 1972), 470 F.2d 455, 459.

Moreover, the issue in In re Sneed (1978), 72 Ill. 2d 326, was decidedly different than that posed here. In that case, a supplemental petition alleging assault was filed while the minor was still on probation. The court dismissed that petition but extended the term of probation for approximately one month. On the last day of the extended probation period, the court extended the period of probation for four more months, again without a finding that the conditions of probation had been violated. During this second extended period, a supplemental petition was filed and the court, after a hearing, found a violation and committed the minor to the Department of Corrections. We affirmed the appellate court’s reversal, on the ground that the trial court lacked the authority to extend probation the first time it did so because, in dismissing the supplemental petition alleging assault, the court did not make a finding of a violation. Thus, the court could not enlarge or modify the conditions of probation pursuant to section 5 — 3(6) (Ill. Rev. Stat. 1975, ch. 37, par. 705-3(6)). 72 Ill. 2d 326, 332.

The minor contends that the same situation occurred here when the trial court stated on November 4, 1976, that probation was extended. The minor argues that the court was without authority to do so because it did not make a finding of a violation of the conditions of probation at that time. We agree with the minor that “[e] xtension is only permitted if the court, following a hearing, finds that the minor has violated a condition of probation.” (In re Sneed (1978), 72 Ill. 2d 326, 332.) We interpret the trial court’s remark on November 4, 1976, however, to have been surplusage and not to have had any effect. It was not until the November 23, 1976, hearing that the court, after a hearing, found a violation to have occurred on November 3, 1976, and did actually extend probation. The court possessed the authority to do so on November 23, 1976, pursuant to section 5 — 3(6). The fact that the hearing and the finding occurred after the period of probation had expired did not diminish the court’s authority since the violation had occurred prior to the expiration of the probationary period. That is all section 5 — 3(6) requires.

The minor argues further that if the General Assembly had intended to extend the period of juvenile probation, it could have expressly done so, as it did regarding adult probation in section 5 — 6—4(a) of the Unified Code of Corrections. That section provides:

“(a) When a petition is filed charging a violation of a condition, the court may:
(1) order a summons to the offender to appear; or
(2) order a warrant for the offender’s arrest where there is danger of his fleeing the jurisdiction or causing serious harm to others ***.
The issuance of such warrant or summons shall toll the sentence of probation or of conditional discharge *** until the final determination of the charge, and the term of probation [or] conditional discharge *** shall not run so long as the offender has not answered the summons or warrant.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—4(a).)

The minor continues that, since the General Assembly did not include a provision similar to the foregoing in the Juvenile Court Act, it did not intend the term of probation to be extended. We are not persuaded by this argument because the analogy between the two statutes is not strictly parallel. In the case of an adult probationer, were the period of probation to run without some means of tolling the period, the court could lose jurisdiction over the probationer for the offense allegedly committed in violation of the conditions of probation. (See People v. Cahill (1921), 300 Ill. 279, 289; People v. McMurray (1945), 391 Ill. 271, 276; People v. Williams (1973), 10 Ill. App. 3d 428, 430.) The juvenile court, on the other hand, does not lose jurisdiction over the minor once the period of probation ends. The court loses jurisdiction over the minor only where it has entered a final closing and discharge order or when the minor reaches the age of 21. (Ill. Rev. Stat. 1977, ch. 37, par. 705-11.) Thus, there is no need to provide for a tolling of the period of probation under the Juvenile Court Act.

Considerations of due process require that a minor be afforded an opportunity for a fair hearing. (Kent v. United States (1966), 383 U.S. 541, 562-63, 16 L. Ed. 2d 84, 97-98, 86 S. Ct. 1045, 1057-58; In re Gault (1967), 387 U.S. 1, 30-31, 18 L. Ed. 2d 527, 548, 87 S. Ct. 1428, 1445.) These considerations are better met where a hearing is held after the parties have adequate time to prepare and not when the parties must attempt to hold a revocation hearing the day the period of probation is to expire. The State’s alternative to filing a petition seeking revocation, that is, to begin adjudicatory proceedings anew, is neither required by the statute nor justified by logic. In a revocation proceeding, the State’s burden of proof is a preponderance of the evidence (Ill. Rev. Stat. 1975, ch. 37, pars. 704 — 6, 705 — 3(5)), whereas in a delinquency proceeding, the State must prove the commission of an offense beyond a reasonable doubt (Ill. Rev. Stat. 1975, ch. 37, pars. 701 — 4, 704 — 6; In re Urbasek (1967), 38 Ill. 2d 535). The language of the statute does not require that the State initiate a new proceeding when the violation, but not the hearing, occurs before the end of a probationary term, and we perceive no reason to impose such an added evidentiary and administrative burden on the juvenile court.

The minor characterizes the court’s order of November 23, 1976, finding a probation violation and revoking probation, as a nullity because the court lacked subject matter jurisdiction to enter it. We disagree because the supplemental petition, invoking the court’s jurisdiction, was filed the last day of the minor’s probationary term, prior to the final closing and discharge of wardship under section 5 — 11 (Ill. Rev. Stat. 1975, ch. 37, par. 705 — 11). Moreover, In re Greene (1979), 76 Ill. 2d 204, held that the juvenile court is a division of the circuit court which, under article VI, section 9, of the Illinois Constitution of 1970, has jurisdiction in all justiciable matters except where this court possesses original and exclusive jurisdiction. (76 Ill. 2d 204, 213-14.) The cause herein, involving a minor whose undisputed age when the supplemental petition was filed was 16, falls within the jurisdiction of the juvenile court. See Ill. Rev. Stat. 1975, ch. 37, par. 702 — 2 (court’s jurisdiction includes delinquency proceedings involving minors under the age of 17).

Accordingly, for the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 51797.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ELIZABETH JONES, Appellee.

      Opinion filed March 21, 1980.

    William J. Scott, Attorney General, of Springfield, and C. David Vogel, State’s Attorney, of Pontiac (Donald B. Mackay, Thomas E. Holum and Sandra L. Devine, Assistant Attorneys General, of Chicago, and Marc D. Towler and Robert J. Biderman, of the State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, and David Bergschneider, Assistant Defender, of the Office of the State Appellate Defender, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

In October of 1976 Elizabeth Jones was found guilty after a jury trial in the circuit court of Livingston County of having committed aggravated battery against a correctional officer (Ill. Rev. Stat. 1975, ch. 38, par. 12 — 4(b)(6)) at the Dwight Correctional Center. The appellate court affirmed the conviction, but on rehearing it concluded that because of this court’s decision in People v. Lutz (1978), 73 Ill. 2d 204, which was handed down after the affirmance, its holding should be that the defendant was guilty only of the lesser included offense of simple battery. (68 Ill. App. 3d 160.) We granted the People’s petition for leave to appeal.

The defendant, while hospitalized at the Dwight Correctional Center, in the course of an altercation with Harold Allen, a correctional officer at the Center, struck the officer on the head with her purse. The instructions tendered by the People and submitted to the jury included Illinois Pattern Jury Instruction, Criminal, No. 11.10 (1968), which stated in part:

“To sustain the charge of aggravated battery, the State must prove the following propositions:
FIRST: That the defendant knowingly or intentionally made physical contact of an insulting or provoking nature with Harold Allen; and
SECOND: That the defendant knew Harold Allen to be a correctional officer engaged in the execution of an official duty. ***”

The defendant contends that the instruction was erroneous. She argues that according to People v. Lutz (1978), 73 Ill. 2d 204, the State, to prove an aggravated battery under section 12 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 12 — 4), must show that the correctional officer suffered some “bodily injury.” She says that proof of an intentional physical contact of an insulting and provoking nature is insufficient.

We have very recently considered and rejected these contentions. In People v. Hale (1979), 77 Ill. 2d 114, we held that to charge the commission of aggravated battery against a peace officer under section 12 — 4(b)(6) it is not necessary to allege that the victim suffered bodily harm. It is sufficient to allege physical contact of an insulting or provocative nature.

The instruction was proper. The judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 52161.
    ROCKFORD DROP FORGE CO. et al., Appellants and Cross-Appellees, v. THE POLLUTION CONTROL BOARD, Appellee and Cross-Appellant.

      Opinion filed March 21, 1980.

      MORAN, J., took no part.
    Ronald Butler, Gerald G. Saltarelli, Robert G. Foster, Robert E. English and Eugene W. Beeler, Jr., of Chicago (Winston & Strawn, of counsel), for appellants.

      William J. Scott, Attorney General, of Springfield (George Wm. Wolff, and Russell R. Eggert, Assistant Attorneys General, of Chicago, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The appellants, 22 Illinois forging companies and the Forging Industry Association (the forging companies), filed a petition directly in the Appellate Court for the Second District under the provisions of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1001 et seq.) to review rules adopted by the Pollution Control Board of the State of Illinois (the Board) for noise emissions from stationary, or “property line,” sources. The rules were upheld by the appellate court (71 Ill. App. 3d 295), and we granted the forging companies’ petition for leave to appeal. The Board has taken a cross-appeal.

The forging companies contended in the appellate court that the noise pollution provisions of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111½, pars. 1023 through 1025) were unconstitutional because of vagueness and improper delegation. The companies also asserted that the regulations exceeded the power granted the Board under the Act, which, according to the forging companies, confined the Board to the prevention of public nuisances. The companies asserted further that the regulations violated the equal protection clauses of the United States Constitution and the Constitution of Illinois because comparable rules had not been adopted for other sources of noise emissions. These claims are renewed on this appeal.

Two provisions of the Act are involved on this appeal. One is section 29 (Ill. Rev. Stat. 1977, ch. 111½, par. 1029), which provides:

“Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under Section 41 of this Act.”

The other is section 41 (Ill. Rev. Stat. 1977, ch. 111½, par. 1041), which reads as follows:

“Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of, pursuant to the provisions of the “Administration Review Act,” approved May 8, 1945, as amended and the rules adopted pursuant thereto, except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court. Review of any rule or regulation promulgated by the Board shall not be limited by this section but may also be had as provided in Section 29 of this Act.
No challenge to the validity of a Board order shall be made in any enforcement proceeding under Title XII of this Act as to any issue that could have been raised in a timely petition for review under this Section.”

Before addressing the merits of the forging companies’ claims, we consider two procedural issues. The first is the Board’s contention that venue for this proceeding was not in the second appellate district, and that the court should have dismissed the petition or transferred the proceeding to the Appellate Court for the First District, in which, according to the Board, the action should have been brought.

The question now under consideration centers on that portion of section 41 which states that review shall be had “in the Appellate Court for the District in which the cause of action arose” (Ill. Rev. Stat. 1977, ch. 111½, par. 1041). The appellate court was of the opinion that the place where a cause of action arose was not clear, that it might be the district where the Board’s headquarters were located or perhaps any district where one or more of the forging companies was located. The court noted that under the latter hypothesis a problem might arise since not all of the forging companies operated a plant within the second district. The opinion stated that since the parties had not argued or briefed the question, however, the court would proceed on the assumption that the petition was properly before it.

The Board asserts that the petition should have been filed in the Appellate Court for the First District because the order adopting the rules was entered at a meeting held at the Board’s Chicago office, and because it is the adoption of a rule which creates the cause of action. Werner v. Illinois Central R.R. Co. (1942), 379 Ill. 559, 565.

As the appellate court pointed out, the venue issue was not briefed or argued by the parties in that court, and it is not clear from the record before us that the Board pursued its objection there. A reversal of the judgment below on the ground that the venue was improper, moreover, would further delay the disposition of this suit and thus would delay as well the resolution of the constitutional challenges to the Act which are made here. For these reasons we do not decide whether the action should have been brought in the Appellate Court for the First District, as the Board contends.

The second procedural question concerns the appellate court’s refusal to consider the forging companies’ challenges to the validity of the Act. One justice of the appellate court dissented from this holding, and it is criticized not only by the companies but also by the Board, although the latter states in its brief that it did not contest the point below and “therefore takes no position on this issue in these proceedings.”

Various objections to the rules governing noise emissions were rejected by this court in Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305. The rules were also sustained in several decisions of the appellate court. (See Laclede Steel Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 263; Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264; Union Oil Co. v. Pollution Control Board (1976), 43 Ill. App. 3d 927; Illinois State Chamber of Commerce v. Pollution Control Board (1977), 49 Ill. App. 3d 954.) It does not appear that the validity of the Act was questioned in any of the foregoing cases, however, and hence the issue before us has not been passed upon.

The court below stated that the basis for its refusal to consider the forging companies’ constitutional objections to the Act was that the court lacked jurisdiction to do so. The court reasoned that judicial review of a rule, as contrasted with an enforcement order, was authorized only by section 29 of the Act; that that section speaks only of the validity or application of a rule; and that an inquiry into the validity of a rule does not include a consideration of the validity of the statute under which the rule was promulgated.

We agree that but for section 29 there could be no review of rules issued by the Board. That is so because section 41, taken alone, provides for review under the Administrative Review Act, and section 2 of the latter statute provides for review only of “decisions” of an agency, a term which section 1 defines as excluding rules. Ill. Rev. Stat. 1977, ch. 110, pars. 264, 265. See Currie, Rule Making Under the Illinois Pollution Law, 42 U. Chi. L. Rev. 457, 473-75 (1975).

It does not follow, however, that consideration of the validity of the Act would be improper. On the contrary, as was said in Oklahoma v. United States Civil Service Com. (1947), 330 U.S. 127, 138-39, 91 L. Ed. 794, 803-04, 67 S. Ct. 544, 551: “Only if the statutory basis for an order is within constitutional limits can it be said that the resulting order is legal. To determine that question, the statutory review must include the power to determine the constitutionality [of the statute].”

Questions going to the validity of the Act have been entertained in proceedings for review of enforcement orders. (City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170; City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482.) Such questions have also been held to be properly before the court upon review of orders issued under other statutes. An important reason is that a contrary practice would lead to piecemeal litigation. Howard v. Lawton (1961), 22 Ill. 2d 331, 333.

The appellate court sought to distinguish the foregoing decisions on the ground that the present proceeding was not an administrative review. (71 Ill. App. 3d 295, 297.) We disagree. Section 29 directs that the right of review which it confers shall be exercised by a petition under section 41. That section incorporates the provisions of the Administrative Review Act, except as to jurisdiction and venue, for which section 41 establishes different provisions. And of course the validity of a rule is judged on the basis of whether it is “clearly arbitrary, unreasonable or capricious,” rather than whether it is contrary to the manifest weight of the evidence. Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 310; cf. Union Oil Co. of California v. Pollution Control Board (1976), 43 Ill. App. 3d 927, 929-30; Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 269; Illinois State Chamber of Commerce v. Pollution Control Board (1977), 49 Ill. App. 3d 954, 959-60.

Although administrative review of rules promulgated under the Act may be something of a hybrid, we are not persuaded by the appellate coúrt’s holding that a challenge to the validity of the Act must be made by way of a separate declaratory judgment action in circuit court, particularly since the challenger may also wish to contest the validity of the rule itself. The appellate court’s position would result in multiplicity of litigation and fragmentation of issues and would delay the enforcement of the Act.

Although we hold that the appellate court should have considered the objections to the validity of the Act, we do not reverse its judgment on that account, for we conclude that those objections are without merit. The first of them is that section 24 of the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1024) is so vague and indefinite as to violate due process. Section 24, the violation of which is made a criminal offense by section 44 (Ill. Rev. Stat. 1977, ch. 111½, par. 1044), is as follows:

“No person shall emit beyond the boundaries of his property any noise that unreasonably interferes with the enjoyment of life or with any lawful business or activity, so as to violate any regulation or standard adopted by the Board under this Act.”

We do not inquire whether the phrase “unreasonably interferes with the enjoyment of life,” standing alone, would be too vague to pass muster, for what is proscribed is conduct which violates any regulation or standard adopted by the Board. The forging companies’ argument under this heading thus relates more properly to its next charge, which is that the Act makes an unconstitutional delegation of legislative power.

In the discussion of that question the forging companies do not identify the points at which they consider the Act vulnerable, and in the treatment of the point in their brief they fail to mention the recent decisions of Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, Thygesen v. Callahan (1979), 74 Ill. 2d 404, and Village of Riverwoods v. Department of Transportation (1979), 77 Ill. 2d 130. In those decisions this court reappraised the constitutional limitations upon rule-making under a comprehensive regulatory statute, and adopted as the criteria of validity that the statute sufficiently identify the persons and activities- subject to regulation, the harm sought to be prevented, and the general means intended to be made available to prevent the harm. (Village of Riverwoods v. Department of Transportation (1979), 77 Ill. 2d 130, 141-42.) It is plain without further discussion that the provisions of title VI (Ill. Rev. Stat. 1977, ch. 111½, pars. 1023 through 1025), including the legislative declaration, the definition of the acts prohibited, and the specification of permissible regulations, together with the provisions of section 27 of the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1027), amply satisfy constitutional requirements.

The forging companies also contend, somewhat inconsistently, that in adopting these rules the Board exceeded its powers. The thrust of the argument is that the Act permits the Board to limit noise emissions only to the extent that they would be actionable at common law under the doctrine of public nuisance, but that the regulations adopted are more stringent.

The companies’ argument is bottomed on section 23 (Ill. Rev. Stat. 1977, ch. 111½, par. 1023), which states: “It is the purpose of this Title to prevent noise which creates a public nuisance.” It is section 25, however (Ill. Rev. Stat. 1977, ch. 111½, par. 1025), which defines the Board’s powers. It directs that the Board shall “categorize the types and sources of noise emissions that unreasonably interfere with the enjoyment of life, or with any lawful business, or activity, and shall prescribe for each such category the maximum permissible limits on such noise emissions.” (Ill. Rev. Stat. 1977, ch. 111½, par. 1025.) The objectives stated in section 25 may reflect in general terms the same concerns as those which underlie the common law. The legislative purpose, however, was to vindicate those concerns through a comprehensive regulatory system. Such an approach might well be thought to require that noise be limited on the basis of an objective, quantitative standard, rather than by its qualitative impact upon a particular affected individual as would be done under the common law method. (Cf. City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 485.) We cannot say that the legislature contemplated that each regulation must be tailored to some common law decision on tort liability.

The forging companies’ final contention is that the rules violate the equal protection clauses in that the Board has established four categories of noise emission — stationary sources, ground transportation sources, construction site sources, and airport sources — but had adopted rules only for the first of these by 1973, and since that time has adopted additional rules only for vehicles on public highways.

This contention is largely disposed of by Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 312-13, where the court stated: “The legislature may address itself to one stage of a problem and not take action at the same time as to other phases.” The forging companies invite us to reconsider that decision in the light of the fact that as of the date when their petition for leave to appeal was filed the Board had still not promulgated regulations for all the other noise source categories.

The passage of time since Illinois Coal Operators Association was decided has in no way bolstered the forging companies’ argument. Under section 28 of the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1028) a rule cannot be adopted without a hearing, and as that case shows, such hearings are extensive and time-consuming. (See 59 Ill. 2d 305, 307.) Since 1975, moreover, an amendment to section 27 requires that hearings must also be held on the economic impact of new regulations. (1975 Ill. Laws 2460; Ill. Rev. Stat. 1977, ch. 111½, par. 1027(b).) It may be added that the Board’s failure to regulate the field of noise in its entirety is due in part to the multiple and protracted proceedings which have been brought to review the stationary source regulations themselves.

The forging companies also assert that the standards governing noise emissions for vehicles on the highway are substantially less stringent than those for stationary sources. We have considered this objection, and we judge that the companies have not shown that the classification complained of is unreasonable or arbitrary. Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 311-12.

For the reasons given in this opinion the judgment of the appellate court is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE MORAN

text:
    (No. 52150.
    JAMES L. SOULES, Appellee, v. GENERAL MOTORS CORPORATION, Appellant.

      Opinion filed March 21, 1980.

      GOLDENHERSH, C.J., UNDERWOOD and RYAN, JJ., took no part.
    Davis & Morgan, of Peoria (John C. Mulgrew, Jr., and William R. Kohlhase, of counsel), for appellant.
    Frank H. Byers, of Byers & Byers, of Decatur, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, James L. Soules, brought this action for damages in the circuit court of Macon County against defendant, General Motors Corporation. Plaintiff’s complaint contained two counts, one based on fraudulent misrepresentation and the other based on negligent misrepresentation. The circuit court granted defendant’s motion to dismiss the complaint, but the appellate court, in a two-to-one decision, reversed, and remanded the cause. (71 Ill. App. 3d 23.) We granted defendant’s petition for leave to appeal.

The pertinent facts alleged in plaintiff’s complaint, accepted as true when ruling upon a motion to dismiss (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 96), and those contained in exhibits attached thereto, which constitute part of the complaint (Ill. Rev. Stat. 1977, ch. 110, par. 36; Fowley v. Braden (1954), 4 Ill. 2d 355, 358-59), are as follows. In March of 1973, plaintiff, seeking to invest money in a prospective automobile franchise, submitted to defendant an “Application for Approval of a Financial Investment in an Oldsmobile Dealership.” Plaintiff and Mel Bishop entered into a written agreement on April 16 to form a corporation, Mel Bishop Oldsmobile, Inc., which thereafter acquired an Oldsmobile vehicle franchise from defendant. Plaintiff was made a director and vice-president of the corporation. The franchise agreement entered into on May 14 between the corporation and defendant stated that the corporate franchisee was required to establish and maintain “minimum owned net working capital” of $134,000. This figure represented the amount of net working capital supplied by investment and earnings. The agreement also recited that the franchisee currently had only $75,000, that it would retain 75% of its net profits in the business until the $134,000 figure was reached, and that it would thereafter maintain at least that amount. The agreement further required the franchisee to submit periodic financial reports to defendant.

In reliance on defendant’s oral representations that the franchisee met defendant’s minimum financial requirements, plaintiff invested $50,000 by purchase of capital stock of the corporation and loaned $75,000 to Bishop to acquire the dealership location. Furthermore, in continued reliance on defendant’s integrity and oral representation that the franchisee met both the defendant’s original and its continuing financial requirements, plaintiff guaranteed repayment of business loans made to the franchisee. Although the defendant knew that the franchisee did not meet either defendant’s original or continuing financial requirements, and that the franchisee’s periodic financial reports were false, plaintiff had no knowledge of these facts. Plaintiff did not learn, until sometime in 1976 or 1977, that the franchisee failed to meet defendant’s original and continuing financial requirements. On May 22, 1975, defendant induced Bishop to prepare a letter terminating the franchise. The complaint finally alleges that defendant’s conduct and actions caused plaintiff to suffer damages in a stated amount.

The circuit court, following a hearing, granted defendant’s motion to dismiss. The dismissal was with prejudice; therefore, plaintiff’s motion for leave to file a second amended complaint was denied. At the hearing on defendant’s motion, the court stated that “as a matter of law I do not believe there is or can be alleged a cause of action here on behalf of the plaintiff. I think the plaintiff, as a director of the corporation here, should have and had the absolute right and duty to know the financial affairs of the corporation and was not entitled to rely on any representation made by the defendant in this case, or any other third party.”

Although the appellate court reversed, it agreed with the circuit court that the plaintiff, because he was a director of the corporation, was not justified in relying on defendant’s representations that the franchisee met the original “minimum owned net working capital” requirement of $134,000. The basis for the appellate court’s reversal was its finding that plaintiff’s status as director did not have this same operative effect with respect to defendant’s representations that the franchisee met its continuing, as opposed to original, financial requirements. Plaintiff, in asking us to affirm the appellate court judgment, asserts that the conclusion of the appellate court was correct. We will, therefore, not consider the portion of the appellate court opinion which held against plaintiff— that he had no right to rely on defendant’s representations as to the original financial requirements of the franchisee.

As disclosed by decisions of this court, the elements of a cause of action for fraudulent misrepresentation (sometimes referred to as “fraud and deceit” or “deceit”) are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 333; Roth v. Roth (1970), 45 Ill. 2d 19, 23; Roda v. Berko (1948), 401 Ill. 335, 339-40; Bennett v. Hodge (1940), 374 Ill. 326, 332.) Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely. Schmidt v. Landfield (1960), 20 Ill. 2d 89, 94; Prosser, Torts sec. 105, at 686 (4th ed. 1971); Restatement (Second) of Torts sec. 537 (1977).

Defendant contends that plaintiff, as a corporate director, had no right to rely on any alleged misrepresentation by defendant, even as to the franchisee’s continuing financial requirements. As previously stated, the franchise agreement required the franchisee to retain 75% of its net profits in the business until it attained “minimum owned net working capital” of $134,000 and, thereafter, to maintain at least that amount. The question of plaintiff’s right to rely on defendant’s representations that the franchisee was meeting its continuing financial requirements cannot be resolved simply by noting plaintiff’s status or position in the corporation. The question is whether, under all the circumstances, plaintiff had a right to rely on the false representations. This question is to be answered while viewing the representation in light of all the facts of which plaintiff had actual knowledge as well as those of which he “might have availed himself by the exercise of ordinary prudence.” Schmidt v. Landfield (1960), 20 Ill. 2d 89, 94, quoting Dillman v. Nadlehoffer (1886), 119 Ill. 567, 577. See also Bundesen v. Lewis (1938), 368 Ill. 623, 632-37.

Plaintiff alleges that the franchisee’s periodic financial reports, which it was required to submit to defendant, were false and known by defendant to be false. Regardless, therefore, of plaintiff’s access to such reports due to his position in the corporation, examination of allegedly false reports would not have revealed that the franchisee failed to meet its continuing financial requirements. Consequently, based upon the limited record before us, we cannot say that plaintiff’s reliance on the truth of defendant’s representations regarding the continuing financial requirements was unjustified. The circuit court erred in holding otherwise.

Because of the circuit court’s misapprehension as to the portion of plaintiff’s complaint concerning the continuing financial requirements of the franchisee, the cause is remanded to the circuit court to allow plaintiff to plead anew. Accordingly, we will not consider other matters not reached by the circuit court.

The judgment of the appellate court, as modified, is affirmed and the cause is remanded to the circuit court for further proceedings in accordance with this opinion.

Affirmed as modified, and remanded, with directions.

GOLDENHERSH, C.J., and UNDERWOOD and RYAN, JJ., took no part in the consideration or decision of this case.


text:
    (No. 52888.
    DONALD L. TOTTEN et al., Appellants, v. THE STATE BOARD OF ELECTIONS et al., Appellees.

      Announced January 28, 1980.

      Opinion filed March 21, 1980.

      Michael Kreloff and Franklin S. Schwerin, of Samuels, Schwerin & Kreloff, of Chicago, for appellants.
    Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for appellee State Board of Elections.
    Andrew M. Raucci and Michael P. McClelland, of Kusper & Raucci, Chartered, of Chicago, for appellee Illinois Republican State Central Committee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Donald L. Totten and other plaintiffs brought an action in the circuit court of Cook County against the State Board of Elections (the Board) and the Illinois Republican State Central Committee. In it they sought to enjoin the Board from refusing to certify the presidential preferences of candidates for delegate and alternate delegate to the Republican National Convention and to order the Board to permit such preferences to appear next to the names of candidates on ballots to be used in the March 18, 1980, primary election.

The circuit court held for the defendants, and we took plaintiffs’ appeal to this court under Rule 302(b) (73 Ill. 2d R. 302(b)). After expedited briefing and oral argument we announced our decision from the bench, affirming the circuit court’s judgment and stating that an opinion would follow.

Prior to the enactment on July 19, 1979, of House Bill 2618 (Pub. Act 81 — 135), section 7 — 10.3 of the Election Code required candidates for delegate or alternate delegate to a national nominating convention to file with the Board a statement of candidacy and to state the names of their presidential preferences or to declare that they were “uncommitted.”

Section 7 — 10.3, as amended by House Bill 2618, now provides:

“(A) Except as otherwise provided in paragraph (B) of this Section, a candidate for delegate or alternate delegate to a national nominating convention shall file with the State Board of Elections at the time of filing the statement of candidacy described in Section 7 — 10, a statement declaring the name of his preference for President of the United States or that he is uncommitted.
(B) The State central committee of a political party may choose to file a statement with the State Board of Elections not less than 30 days prior to the first day for filing the statement of candidacy described in Section 7 — 10, specifying that a candidate for delegate or alternate delegate shall not be required to file an official declaration statement pursuant to this Section.
If the State central committee of a political party specifies that any such official declaration statement is not required to be filed by the candidates for delegates and alternate delegates to the national nominating convention of any such political party, then no such declaration statement shall be required to be made.” Ill. Rev. Stat. 1979, ch. 46, par. 7-10.3.

Section 7 — 19, which was also amended, states:

“Next to the name of each candidate for delegate or alternate delegate to a national noninating convention shall appear either (a) the name of the candidate’s preference for President of the United States or the word ‘uncommitted’ or (b) no official designation, depending upon the action taken by the State central committee pursuant to Section 7 — 10.3 of this Act.” Ill. Rev. Stat. 1979, ch. 46, par. 7-19.

Acting under subsection (B) of section 7 — 10.3 the Republican State Central Committee on August 3, 1979, decided by resolution to run a “blind primary” and not to require candidates to file an official declaration of presidential preferences. The Board interpreted subsections (a) and (b) of section 7 — 19 to be mutually exclusive. The Board judged that subsection (B) of section 7 — 10.3 conferred upon the State central committee of a political party the option of having a so-called blind primary, which, when exercised, would bind the candidates of that party.

The plaintiffs note that subsection (B) of section 7 — 10.3 states that a candidate “ ‘shall not be required to file an official declaration statement’ ” rather than that a candidate “shall not be permitted ***.” From this they argue that subsection (A) and it are not mutually exclusive. They say that subsection (B) was intended by the legislature to provide independent candidates with a preferable alternative to declaring that they were uncommitted, which they describe as having a “ ‘rather weak, vacillating, unflattering connotation.’ ”

It is fundamental that the language of a statute is to be given its plain and ordinary meaning so that the legislature’s intendment may be ascertained and given effect. (Dienes v. Holland (1979), 78 Ill. 2d 8, 15; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139.) We do not consider that the plaintiffs’ contention that subsections (A) and (B) were not to be mutually exclusive is valid. The legislature’s use of the language “shall not be required” was not inconsistent with the Board’s interpretation, as subsection (A) imposes on candidates seeking election as delegates the requirement of filing declarations of presidential preference or declarations of being uncommitted.

It is also fundamental in statutory construction that each section of a statute is to be examined in relation to all of its other provisions, so that when they are examined as a whole the intendment and meaning of the statute may be ascertained. (Huckaba v. Cox (1958), 14 Ill. 2d 126, 131. See also Winks v. Board of Education (1979), 78 Ill. 2d 128, 135.) Considering section 7 — 19 with section 7 — 10.3 it is clear that subsections (A) and (B) of section 7 — 10.3 are to be interpreted as separate and mutually exclusive alternatives. Section 7 — 19 specifically states that next to the name of a candidate shall appear “either (a) the name of the candidate’s preference for President of the United States or the word ‘uncommitted’ or (b) no official designation, depending upon the action taken by the State central committee pursuant to Section 7 — 10.3 of the Act.” (Emphasis added.)

Thus, under section 7 — 10.3(B), a candidate for delegate is required to file with his statement of candidacy a declaration of presidential preference or a declaration of being “uncommitted” unless the State central committee of the political party exercises the option under section 7 — 10.3(B) for a blind primary, in which case neither declaration will appear on the ballot next to the candidate’s name. This court has said: “The legislative intent should be sought primarily from, the language used in the statute. When the language of the act is certain and unambiguous the only legitimate function of the courts is to enforce the law as enacted by the legislature. (Weiss Memorial Hospital v. Kroncke, 12 Ill. 2d 98, 105; Belfield v. Coop, 8 Ill. 2d 293, 307.)” Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84.

The plaintiffs also raise two constitutional objections to section 7 — 10.3. First, they contend that by vesting the State central committee of a political party with “unbridled discretion to choose between two different selection processes” the legislature has improperly delegated its sovereign power of administering the election process to an organization of private persons. To support this, they cite the decision in People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321, but that decision has no application. Rini involved section 25 — 11 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 25 — 11), which provided that if a vacancy arose on a county board before a general election the president of the board had authority to give to the county central committee of the incumbent’s political party the power to appoint a successor to what otherwise would be an elected office. In declaring that statute unconstitutional this court held that “[t] he power to appoint public officers is the sovereign power of the State *** [and] cannot be conferred upon a private person or group ***.” 64 Ill. 2d 321, 326.

Niether section 7 — 10.3 nor section 7 — 19 delegates to the State central committee of a political party authority to appoint public officials or delegates to a national nominating convention. The selection of candidates is left entirely to the electorate. Whether presidential preferences will appear on the primary election ballot or not may be affected by these sections but they certainly do not prevent voters from obtaining this information from the candidates.

Too, a political party possesses certain inherent rights, founded on the constitutional right of association, which pertain to the party’s internal management. (Cousins v. Wigoda (1975), 419 U.S. 477, 42 L. Ed. 2d 595, 95 S. Gt. 541.) These may be exercised so long as there is no violation of statutory limitations or the constitutional rights of voters. (See, e.g., Lawlor v. Chicago Board of Election Commissioners (N.D. Ill. 1975), 395 F. Supp. 692.) Such rights of a political party are illustrated in section 7 — 8(h) of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 7 — 8(h)), which provides: “[The State central committee] and its officers shall have the powers usually exercised by such committees and by the officers thereof, not inconsistent with the provisions of this Article.” See also Ill. Rev. Stat. 1977, ch. 46, par. 7 — 14.1 (State central committee empowered to choose between different alternatives of electing delegates to a national nominating convention, i.e., by primary election or State convention); Ill. Rev. Stat., 1978 Supp., ch. 46, par. 7 — 14.2 (State central committee given the authority to choose the method of selecting delegates to national conventions other than nominating conventions).

This court in People ex rel. Kell v. Kramer (1928), 328 Ill. 512, when interpreting a similar statutory provision, stated:

“The right of political parties to make nominations is not a right enumerated in the constitution but is a political privilege which may be regulated by the legislature, and in absence of such regulation is exercised in accordance with the will of members of the political party concerned, as that will is expressed through rules, customs, conventions or caucuses of such political organization.” (328 Ill. 512, 518-19.)

See also People ex rel. Lindstrand v. Emmerson (1929), 333 Ill. 606; Cousins v. Wigoda (1975), 419 U.S. 477, 42 L. Ed. 2d 595, 95 S. Ct. 541; Marchioro v. Chaney (1979), 442 U.S. 191, 60 L. Ed. 2d 816, 99 S. Ct. 2243; Sears v. Secretary of the Commonwealth (1975), 369 Mass. 392, 341 N.E.2d 264.

The plaintiffs argue also that as presidential preferences will only appear on the Democratic primary ballot the two parties are, in effect, being treated differently in violation of article III, section 4, of the 1970 Constitution of Illinois, which states in part: “Laws governing voter registration and conduct of elections shall be general and uniform.” Ill. Const. 1970, art. III, sec. 4.

Under our constitution, the State Board of Elections is charged with the responsibility of supervising and administering elections and insuring that they will be conducted in a general and uniform manner. The debates of the 1970 Constitutional Convention and other commentary (Ill. Const. 1970, art. III, sec. 4, Constitutional Commentary (Smith-Hurd 1971)) show, however, that the uniformity provision refers to the mechanics of voter registration, residency requirements and other election and voting procedures. It does not address and was not intended to require uniformity of rules governing the management of a political party’s internal affairs.

The decision for a blind primary was an alternative available to both the Democratic and Republican parties. That the State central committee of the Republican Party chose this alternative, which was in contrast to the Democratic Party’s decision to allow the designation of candidates’ presidential preferences, does not affect the manner in which the election is held. It is not a matter within the uniformity provision of article III, section 4, of the Illinois Constitution.

Accordingly, for the reasons stated the judgment of the circuit court of Cook County was affirmed.

Judgment affirmed.