text:
    (No. 50431.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES F. BEAM, Appellant.

      Opinion filed January 12, 1979.

      Frank Giampoli, Public Defender, of Taylorville, for appellant.
    William J. Scott, Attorney General, of Springfield, and Kelly D. Long, State’s Attorney, of Hillsboro (Donald B. Mackay, Melbourne A. Noel, Jr., and Michael B. Weinstein, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Defendant was charged, in seven separate complaints, with seven violations of subsection (d), the “bad check” provision, of the deceptive practices statute (Ill. Rev. Stat. 1975, ch. 38, par. 17—1(d)). After he pleaded guilty to the seventh charge, defendant moved to dismiss the remaining six complaints. The circuit court of Montgomery County granted defendant’s motion and the State appealed each dismissal. The appellate court consolidated the appeals for review and reversed (55 Ill. App. 3d 943). We granted defendant leave to appeal.

The complaints against defendant, when viewed together, charged that, during a period of 47 days in 1975, he delivered seven checks, totaling $165.16, to different merchants, knowing that the checks would not be paid by the depository bank. The seventh complaint was not brought until after defendant had pleaded not guilty to the first six. Defendant contends that his guilty plea to the seventh complaint barred prosecution of the other six because of the penalty provision of the deceptive practices statute, which states:

“Deceptive practice under subsections (a) through (d) is a Class A misdemeanor. In the case of a prosecution for separate transactions totalling more than $150 within a 90 day period, such separate transactions shall be alleged in a single charge and provided in a single prosecution.” (Ill. Rev. Stat. 1975, ch. 38, par. 17-1.)

Specifically, defendant contends that the second sentence (proviso) of the quoted provision is mandatory and requires the State to include all seven violations in a single charge. The State argues that the proviso should be declared a nullity and given no effect because it is an “incomplete felony sentencing provision.” Alternatively, the State argues that the proviso is merely directory, not mandatory. The latter theory was the basis for the appellate court’s decision.

The primary function of the court in construing a statute is to give effect to the intention of the legislature. (People v. Bratcher (1976), 63 Ill. 2d 534, 542-43; People v. Scott (1974), 57 Ill. 2d 353, 358.) The wording of the statute here directs the State to include in a single prosecution separate transactions which occur within a 90-day period and total more than $150. The statute does not, however, provide for increased punishment. Thus the statute creates an anomaly in the instant situation: because defendant’s seven checks totaled more than $150, he can be prosecuted for only a single Class A misdemeanor, but had the checks totaled less than $150, he could be prosecuted for seven separate Class A misdemeanors. A literal reading of the statute would reward the defendant for his exorbitance. Courts are not bound, however, by a literal reading of a statute if that reading was clearly not intended. People v. Hudson (1970), 46 Ill. 2d 177, 181.

To discover the legislative intent, it is proper to consider the history and course of the legislation (People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 310; People v. Boreman (1948), 401 Ill. 566, 571); and the history of section 17—1 indicates that a literal reading was not intended. The version of section 17—1 under which defendant was charged is quite similar to that which existed in 1963 (Ill. Rev. Stat. 1963, ch. 38, par. 17—1). Significantly, however, while the length of imprisonment is the same under both versions, the proviso does not appear in the 1963 version. Under the 1963 version, each violation of subsection (d) could be charged and prosecuted separately, regardless of the frequency and total amount of the violations.

In the 1965 version, a new provision, subsection (e) (Ill. Rev. Stat. 1965, ch. 38, par. 17—1(e)), was added to cover the unauthorized use of a credit card. Concurrently, the penalty provision was amended to take into account violations of new subsection (e). A defendant convicted under subsection (e) was subject to the same penalty as persons who violated any of the other substantive provisions, except that, in certain instances, a harsher penalty could be imposed:

“A person convicted of deceptive practices under Subsection (e) of this Section shall, when the value of any property, labor or services obtained, or attempted to be obtained, in a single transaction, or in separate transactions with the same furnisher of property, labor or services within any 90 day period, exceed $150, be imprisoned in the penitentiary from one to 10 years. In the case of a prosecution for separate transactions totalling more than $150 within a 90 day period, such separate transactions shall be alleged in a single charge and proven in a single prosecution.” (Ill. Rev. Stat. 1965, ch. 38, par. 17—1(e).)

It is to be noted that the proviso (with the word “proven” instead of “provided”) first appeared in this version. Because it accompanied the increased penalty imposed for certain violations of subsection (e), we believe the proviso was intended to function solely as a condition upon the State’s right to the increased penalty for those violations. In our opinion, therefore, the proviso applied only to violations of subsection (e), the credit card provision. The quoted provision, including the proviso, did not apply to and had no effect on the other substantive provisions, which retained the same penalty as the 1963 version. Thus, under the 1965 version of section 17 — 1, any violation of subsection (d) remained punishable only to the same extent as under the 1963 version, and each violation of subsection (d) could still be charged and prosecuted separately.

The 1967 version included several additional subsections, all involving credit cards, but otherwise remained unchanged as far as is relevant here. The penalty provisions were later altered to reflect the new crime classification system (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 17—1), but otherwise the statute remained essentially unchanged for several years. Then, in 1973, the legislature enacted the Illinois Credit Card Act (Ill. Rev. Stat. 1973, ch. 121½, par. 601 et seq.), which replaced the credit card provisions in the deceptive practices statute (Ill. Rev. Stat. 1973, ch. 38, par. 17—1). As a result, the form of the 1973 version of the deceptive practices statute was almost the same as the 1963 version: all violations of subsection (d) remained punishable as misdemeanors only. But, although the credit card subsections were removed from section 17 — 1, the proviso remained. We are convinced that, because the proviso was originally part of the increased penalty provision for certain credit card violations and because its attachment to subsection (d) offenses would prompt the aforementioned anomalous results, the proviso remained in section 17—1 through legislative oversight. This version, then, was simply carried over to the statute under which defendant here was charged.

Having concluded that the proviso is part of section 17 — 1 as the result of legislative oversight, we are of the opinion that it should be given no effect. Somewhat analogous is People v. Hudson (1970), 46 Ill. 2d 177, where this court read into a statute certain language which it concluded had been omitted through legislative oversight. As here, the Hudson court found that to construe the statute literally would lead to absurd results, and, to determine the true intent, the court examined the prior versions of the statute. 46 Ill. 2d 177, 180-82.

Our conclusion is buttressed by a reading of the 1978 amendment to the deceptive practices statute (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 17—1). A violation of subsections (a) through (d) remains a Class A misdemeanor, except that violation of subsection (d) is now a Class 4 felony “when the value of the property so obtained, in a single transaction, or in separate transactions within a 90 day period, exceeds $150.” The proviso was placed immediately after this new increased penalty provision. Thus, the legislature has corrected its prior oversight by correlating the proviso with the increased penalty provision.

For the foregoing reasons, the judgment of the appellate court reversing the circuit court and remanding the cause to that court with directions to reinstate the complaints is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 49857.
    EDWARD E. BLUTHARDT et al., Appellees, v. PEG McDONNELL BRESLIN et al.—(Peg McDonnell Breslin, Appellant.)

      Opinion filed January 12, 1979.

      Gif fin, Winning, Lindner, Newkirk, Cohen & Bodewes, of Springfield (Herman G. Bodewes and John R. Keith, of counsel), for appellant.
    Andrew M. Raucci, of Chicago, for appellees.
    Lee J. Schwartz, of Chicago (David A. Epstein, Thomas Scheuneman, Michael Poliak, and Ronald Nelson, of counsel), for amici curiae William A. Redmond, Speaker of the House, Thomas C. Hynes, President of the Senate, George H. Ryan, House Minority Leader, and David C. Shapiro, Senate Minority Leader.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This is a direct appeal from an order of the circuit court of Sangamon County, entered on August 12, 1977. The trial court, relying on this court’s decision in People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321, declared unconstitutional those portions of section 25 — 6 of the Election Code which provide the method of appointment to fill vacancies in the General Assembly (Ill. Rev. Stat. 1975, ch. 46, par. 25—6). The trial court also decreed that the appointment of Peg McDonnell Breslin (defendant), as a member of the Illinois House of Representatives of the 80th General Assembly, was invalid and enjoined her from acting as a member. On September 14, 1977, this court stayed the enforcement of the judgment order.

On November 2, 1976, defendant was elected to a two-year term to represent the 38th legislative district in the Illinois House of Representatives. On November 29, 1976, a resident and legal voter of the 38th legislative district filed a challenge, claiming that defendant had not been a resident of the legislative district for two years prior to the election. After committee hearings and debate on the floor of the House of Representatives, the House, on June 30, 1977, voted to unseat defendant. The motion to unseat defendant and to declare vacant the seat to which defendant had been elected was passed by a roll call vote of 91-75, with five members voting present. A report, adopted by the House, found that defendant had been a resident of the city of Chicago from October 5, 1970, through December 1975, that she did not reside in the 38th legislative district prior to December 1975, and that she did not, therefore, meet the two-year residency requirement mandated by the 1970 Illinois Constitution (Ill. Const. 1970, art. IV, sec. 2(c)).

Pursuant to section 25 — 6 of the Election Code, the vacancy created by defendant’s ouster was to be filled “within 30 days by appointment of the representative committee of that legislative district of the political party of which the incumbent was a candidate at the time of [her] election.” (Ill. Rev. Stat. 1975, ch. 46, par. 25—6(b).) The section also provides that the appointee shall be a member of the same political party as the former incumbent and shall be “otherwise eligible to serve as a member of the General Assembly.” (Ill. Rev. Stat. 1975, ch. 46, par. 25— 6(b).) On the same day that the House voted to unseat defendant, the five-member' Legislative Committee of the 38th legislative district appointed defendant to fill the vacancy. By the following day (July 1, 1977), defendant had taken the oath of office and assumed the duties and responsibilities of a member of the 80th General Assembly. Consequently, defendant, who had served in an elective capacity from January 12, 1977, until June 30, 1977, continued to serve as a representative, but as of July 1, 1977, in an appointive capacity.

Shortly thereafter, Edward E. Bluthardt, Philip W. Collins, and Richard A. Mugaban (plaintiffs in the instant action) filed with the clerk of the House of Representatives a challenge to defendant’s qualifications to serve as an appointed member. Each challenger was a member of the House of Representatives and served on the House Committee on Elections. The House took no action on the challenge prior to July 18, 1977, when plaintiffs filed the instant complaint for declaratory judgment and injunctive relief.

The action was brought in three counts. Count I sought a declaratory judgment, against defendant and the five members of the Legislative Committee which appointed her, to have the court determine whether defendant was a validly appointed member of the House of Representatives. Count II sought to enjoin defendant from purporting to act as a member of the House of Representatives. Count III sought to enjoin the State Comptroller and State Treasurer from facilitating the payment of defendant’s salary and from honoring vouchers submitted by her. The trial court dismissed the action in count III for failing to comply with statutory procedures regarding suits to enjoin the disbursement of State funds (Ill. Rev. Stat. 1975, ch. 102, par. 11 et seq.).

In requesting declaratory and injunctive relief in counts I and II, plaintiffs did not seek to have section 25 — 6 of the Election Code declared unconstitutional. On its own initiative, the trial court requested briefs on the validity of the statutory method of appointment. Both defendant and the plaintiffs argued that the issue was not before the court. The trial court, nevertheless, found the statutory method of appointment unconstitutional, and the appointment of defendant made pursuant thereto invalid. In so finding, the trial court recognized that the last valid action taken with regard to defendant’s seat in the 80th General Assembly was the June 30, 1977, vote to unseat her. Consequently, the trial court granted plaintiffs’ motion for summary judgment and entered a judgment order which decreed that defendant had not been a member of the 80th General Assembly since June 30, 1977, and ordered that defendant was enjoined from acting, under color of an unconstitutional appointment, as a member of the 80th General Assembly.

During oral argument, counsel for defendant conceded the possibility that the case might become moot before this court had an opportunity to decide the appeal on its merits. A case can become moot when, pending the decision on appeal, events occur which render it impossible for the reviewing court to grant effectual relief to either party. (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379-80; Chicago City Bank & Trust Co. v. Board of Education (1944), 386 Ill. 508, 520.) A reviewing court can, of course, take judicial notice of such events or facts which, while not appearing in the record, disclose that an actual controversy no longer exists between the adverse parties. Central States Import & Export Corp. v. Liquor Control Com. (1950), 405 Ill. 58, 59-60.

We take judicial notice that on November 7, 1978, defendant was again elected to a two-year term to represent the 38th legislative district in the Illinois House of Representatives. On January 10, 1979, the 81st General Assembly convened and defendant began her term as an elected official in the 81st General Assembly. In this case, the declaratory and injunctive relief granted by the trial court extended only to defendant’s appointment to serve as a member of the now dissolved 80th General Assembly. It is clear that a review by this court of the relief granted could no longer effect a result respecting the 80th General Assembly and could not prevent defendant from serving in an elective capacity in the 81st General Assembly. The parties do not assert, and we find no reason to presume, that defendant’s qualifications will be challenged again or that any future controversy relating to section 25 — 6 will involve defendant. No continuing or recurring controversy exists between the adverse parties for which a judicial decision would be of consequence. If it becomes apparent that an opinion on a question of law cannot affect the result as to the parties or controversy in the case before it, the court should not resolve the question merely for the sake of setting a precedent to govern potential future cases. La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379; Tuttle v. Gunderson (1930), 341 Ill. 36, 45-46.

The controversy having become moot between the parties, we hereby vacate the judgment order of the circuit court of Sangamon County and remand the cause, with directions to dismiss the complaint.

Vacated and remanded, with directions.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50563.
    GUNTHROP-WARREN PRINTING COMPANY et al., Appellees, v. THE INDUSTRIAL COMMISSION et al.—(Jennie Dolce, Appellant.)

      Opinion filed January 12, 1979.

      J. Michael Madda & John E. Flavin, of Chicago (Charles Wolff, of counsel), for appellant.
    Gordon, Schaefer & Gordon, Ltd., of Chicago (Gilbert W. Gordon, of counsel), for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded the claimant, Jennie Dolce, burial expenses and 296 weeks of compensation in connection with the death of her husband, Thomas Dolce, pursuant to section 7 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.7). The arbitrator found that at the time of his death Thomas Dolce was an employee of the GunthropWarren Printing Company and that the accidental injuries he sustained arose out of and in the course of his employment. The Commission affirmed the award. On review, the circuit court of Cook County reversed, holding that on the date of Thomas Dolce’s fatal accident no employer-employee relationship had existed between Dolce and respondent Gunthrop-Warren. Claimant appealed.

Deceased worked the night shift in Gunthrop-W arren’s printing shop, located in a building owned by GunthropWarren near Wacker Drive in Chicago. The composing room where Dolce worked was on the second floor, and it was there that the employees received their payroll checks every Wednesday from Charles Thompson, the general foreman, who had a desk right inside the door. The shop was organized under a contract between Gunthrop-Warren and the Chicago Typographical Union. Some employees were in the habit of giving their paychecks to Bernard Dimeo, the union steward, who would cash the checks in a nearby bank, deduct the employees’ union dues, and distribute the balance to the employees.

On March 12, decedent was notified that he would be laid off because of a reduction in the work force. He worked his last shift on Friday, March 14, the effective date of the layoff. He did not receive his final check at that time. Charles Thompson, the general foreman, testified that when' an employee is laid off on a Friday the company’s procedure is to issue his check the following Wednesday. Thompson said that, absent special instructions from the employee, he holds the check on Wednesday, and if the employee does not pick it up, he mails it to the employee’s home. Thomas Peterson, the superintendent, testified to the same effect, explaining that it was impractical to pay night-shift employees at the end of their last shift. Peterson indicated, however, that at an employee’s request, the company would mail the final check prior to the next regular payday on Wednesday. Thompson and Peterson both testified that they had received no instructions from decedent about his check.

On Wednesday, March 19, the first payday after his layoff, decedent went to pick up his paycheck. He parked his car on Wacker Drive around noon and met Dimeo, who was on his way to the bank to cash the employees’ checks. Dolce accompanied Dimeo to the bank because he wanted to discuss his layoff with the union steward. The two men returned from the bank together and entered the elevator in Gunthrop-Warren’s building. Dolce got off at the second floor, having told Dimeo that he was going to pick up his check. As Dimeo got off the elevator, a man with a gun reached out and stopped him and demanded the bag of money he was carrying. The assailant grabbed for the bag and shot Dimeo in the arm. Dolce cried out “What’s happening?” and the assailant turned and shot him also. Dimeo saw Dolce grab his stomach, double up and fall. Several more shots were fired. Dolce died of his wounds.

Respondent first contends that we must affirm the circuit court because the record does not contain a report of the hearing before the court and we therefore do not have access to the arguments of counsel and the court’s comments. The cases that respondent cites in support of this proposition are inapposite because none of them involve proceedings under the Workmen’s Compensation Act, in which the circuit court sits as a court of review. On certiorari the circuit court considers a case only on the record made before the Industrial Commission and has no authority to consider evidence not presented therein. (Pontiac Chair Co. v. Industrial Com. (1974), 59 Ill. 2d 261, 266; Brown v. Industrial Com. (1972), 51 Ill. 2d 291, 293; Zimmerman v. Industrial Com. (1972), 50 Ill. 2d 346, 350.) The record here contains the trial court’s order setting forth the court’s reason for reversing the Commission. The record does not show whether the proceedings before the court were transcribed. If they were, and if remarks made there were helpful, it was respondent’s privilege to have them filed. Their absence does not in any way preclude our determining the correctness of the trial court’s decision.

The principal issue is whether an employer-employee relationship existed between the Gunthrop-Warren Printing Co. and decedent on March 19, 1975. Respondent argues that this relationship terminated when decedent completed his last shift on March 14 and left the premises. Thereafter, respondent reasons, the employee owed no further duty to Gunthrop-Warren under a contract of employment, and his relationship to his former employer was transformed into that of creditor to debtor. When Dolce went to pick up his check on the regular payday, he did not do so at Gunthrop-W arren’s request; moreover, had he not picked the check up, the company would have mailed it to him. Respondent relies on Waters v. Industrial Com. (1932), 349 Ill. 214, and Skelgas Co. v. Industrial Com. (1948), 400 Ill. 322. In Waters the claimant was discharged from his job effective December 31, 1929. On March 5, 1930, after picking up his final pay voucher, he fell and was injured. This court set aside an award by the Industrial Commission in the claimant’s favor, holding that no employer-employee relationship existed at the time of the accident and that the accident therefore did not arise out of and in the course of employment. In Skelgas the employee was injured, several days after the termination of his job, while on his way to a medical examination requested by the employer in connection with a workmen’s compensation claim. This court held that the employee was not in the course of employment because “[t]he statutory right to an examination is entirely independent of the relationship of employer and employee.” 400 Ill. 322, 328-29.

Claimant’s position is that the employer-employee relationship did not abruptly terminate when decedent finished his last shift because an incident of the employment, Gunthrop-W arren’s obligation to compensate him for services rendered, remained uncompleted. GunthropWarren did not pay him at the end of his last shift for reasons of its own bookkeeping convenience, although the contract between the company and the union provided that laid-off employees be paid at the end of their final shifts. In going to pick up his check on the following Wednesday, he was accomodating himself to an established procedure by which the company discharged its final obligation. Claimant relies on Crane Co. v. Industrial Com. (1922), 306 Ill. 56, where the employee, who worked in a factory, had remained home one payday because his baby was ill. He contacted his foreman by telephone and was informed that he would have to collect his pay in person. While leaving the plant after receiving his pay, he fell and was injured. This court held that at the time of the accident the claimant was acting in the course of his employment.

We do not find either of the decisions cited by the parties to be controlling. In Skelgas the former employee was not collecting his pay, and in Waters more than two months had elapsed between the claimant’s last day of work and the date on which he collected his pay. It seems clear that the employer-employee relationship cannot be prolonged indefinitely by the dilatory behavior of the employee in collecting a final paycheck after it is available. That consideration, however, does not preclude us from determining that, for purposes of workmen’s compensation coverage, the employer-employee relationship may persist for a reasonable time after a layoff to enable the employee to collect his pay, particularly when the employer has not made it available on the final day of work.

While the testimony here did not specify the expected duration of the layoff, the parties appear to assume that it was of indefinite duration. That factor distinguishes this case from Crane Co., where the contract of employment was still in full force.

Whatever the expected duration of the layoff, however, we believe that the correct rule of law supports the claimant’s position. The rule is stated succinctly by Professor Larson: “Compensation coverage is not automatically and instantaneously terminated by the firing or quitting of an employee.” “The contract of employment is not fully terminated until the employee is paid, and accordingly an employee is in the course of employment while collecting his pay.” (1A A. Larson, Workmen’s Compensation secs. 26.10, 26.30, at 5—228, 5—240 (1978).) As Larson notes, this rule was first laid down in an early English case, Riley v. William Holland & Sons (1911), 1 K.B. 1029. In that case an employee who had been discharged on Wednesday was held entitled to compensation for injuries she sustained when she returned on Friday, the regular payday, to collect her wages. Among the American decisions recognizing this rule are Solo Cup Co. v. Pate (Okla. 1974), 528 P.2d 300 (employee who quit on Wednesday and returned on Friday to turn in her company uniforms and collect her last paycheck was in the course of her employment when injured); Massachusetts Bonding & Insurance Co. v. Industrial Com. (1959), 8 Wis. 2d 606, 99 N.W.2d 809 (compensation affirmed where employee, fired for intoxication, returned four days later for his salary and his tools and fell down a flight of stairs, injuring himself); Parrott v. Industrial Com. (1945), 145 Ohio St. 66, 60 N.E.2d 660 (employee who could not collect his pay when he quit on Friday and returned for it the following Thursday, two days after the regular payday, and was then injured, was in the course of employment at the time of injury); Pederson v. Industrial Com. (1930), 201 Wis. 599, 602, 231 N.W. 267, 268 (“It is likewise held that even after his discharge the employee is under the protection of the act while presenting himself at the usual place for the purpose of receiving his pay”); Perry v. Beverage (1922), 121 Wash. 652, 209 P. 1102 (employer-employee relationship had not terminated when an employee of a logging camp who worked his last day and then went to collect his pay after dinner was struck by foreman in a dispute about wages).

Accordingly, we conclude that when Thomas Dolce, unable to receive his pay at the end of his last shift, attempted to present himself at the usual place for payment on the next regular payday, the employer-employee relationship had not terminated and he was in the course of his employment. This conclusion is not altered by the fact that if the employee had not presented himself at the usual place his check would have been mailed to him. Likewise the fact that he accompanied the union steward to the bank is immaterial. There was uncontradicted testimony that the employee was on his way to collect his pay when he got off the elevator on the second floor of Gunthrop-Warren’s building.

As we intimated earlier, we do not overrule the result reached in Waters v. Industrial Com. (1932), 349 Ill. 214, because there an unreasonable interval had elapsed between the employee’s last day of work and the date on which he collected his pay. Nor do we undertake to prescribe the outer limits of the reasonable interval during which the employer-employee relationship will persist. We simply hold that it was not exceeded in this case.

The judgment of the circuit court of Cook County is reversed and the award of the Industrial Commission is reinstated.

Judgment reversed; award reinstated.


text:
    (No. 50572.
    KENNETH L. LENARD, Appellant, v. THE BOARD OF EDUCATION OF FAIRFIELD SCHOOL DISTRICT NO. 112 OF WAYNE COUNTY, Appellee.

      Opinion filed January 12, 1979.

      Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellant.
    William E. Hoffee, of Fairfield, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The respondent, the Board of Education of Fairfield School District No. 112 (Board), dismissed Kenneth L. Lenard (petitioner) from his teaching position, the dismissal to be effective at the end of the 1973-74 school year. On April 25, 1974, petitioner filed for a writ of mandamus, seeking to have the circuit court of Wayne County direct respondent to reinstate petitioner to his teaching position for the 1974-75 school year. The circuit court dismissed the petition on the ground that mandamus was not an appropriate remedy; but, upon remand following an appeal, the circuit court ordered that petitioner be reinstated. The appellate court reversed (57 Ill. App. 3d 853), and we granted petitioner leave to appeal.

Petitioner was a tenured teacher, employed by the Board. He held a high school teaching certificate, covering grades 6 through 12 (see Ill. Rev. Stat. 1973, ch. 122, par. 21—5), and, primarily, taught geography to students in the seventh grade. In March 1974 the Board notified petitioner that he would be honorably dismissed at the end of the school year because of a reduction in the number of teachers in the district. Petitioner then filed the instant petition, alleging that he was entitled to the teaching position held by a nontenured teacher, Richard Carter, who taught various subjects to students in the sixth grade.

The Board dismissed petitioner pursuant to section 24— 12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24 —12), under which tenured teachers (those with “contractual continued service”) could be dismissed without a hearing if the dismissal resulted from the Board’s decision to decrease the number of teachers employed. Section 24 — 12 also provided, however:

“[I] n all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service.” Ill. Rev. Stat. 1973, ch. 122, par. 24-12.

The outcome of this appeal turns on the meaning of “legally qualified,” as contained in the just-quoted provision. Petitioner contends that he is “legaUy qualified” to hold Carter’s position merely by virtue of holding a teaching certificate covering grades 6 through 12. The Board, however, contends that to be ‘legally qualified” a teacher must also meet the semester-hour requirements of Circular Series A, No. 160 (A—160), a regulation of the office of the Superintendent of Public Instruction (Superintendent), now the State Board of Education.

In reversing the circuit court’s issuance of the writ, the appellate court held that satisfaction of the teacher-certification requirements did not automatically make the petitioner “legally qualified” to hold Carter’s positon; A — 160 also must be satisfied. Because it found that petitioner did not satisfy the semester-hour requirements of A — 160, the appellate court concluded that petitioner was not “legally qualified” to hold Carter’s position.

To be certified to teach in Illinois, all public school teachers must comply with article 21 of the School Code (Ill. Rev. Stat. 1973, ch. 122, pars. 21—1 through 21—25). Section 21—1 provides generally that no one may be certified “who is not of good character, good health, a citizen of the United States and at least 19 years of age.” Section 21—5 governs the high school certificate, and provides:

“It shall be issued to persons who have graduated from a recognized institution of higher learning with a bachelor’s degree and with not fewer than 120 semester hours including 16 semester hours in professional education, 5 of which shall be in student teaching under competent and close supervision and with one or more teaching fields. The academic and professional courses offered as a basis for the high school certificate shall be approved by the Superintendent of Public Instruction in consultation with the State Teacher Certification Board.” (Ill. Rev. Stat. 1973, ch. 122, par. 21-5.)

It is not disputed that petitioner satisfied these requirements, as must all teachers desirous of holding a high school certificate. Petitioner, however, contends that, having met the requirements, he is “legally qualified” under section 24 — 12. In our view, however, had the legislature meant to equate “legally qualified” with “certified” it could easily have used the word “certified,” or “certificated.”

A — 160, as promulgated in 1973 by the Superintendent, provided in pertinent part:

“Chapter 6 The Instructional Program
6 — 2.7 The instructors shall meet the semester hour requirements for the areas of their teaching assignment as outlined in Chapter 9, Section 5 of this document.
* * *
Chapter 9 Standards Governing Preparation of Professional Personnel
* * *
Chapter 9 — 5 Standards for Secondary Teachers
The quality of instruction depends upon many factors; however, a teacher should have substantial college or university training in the field directly related to the subject matter that is being taught.
Although certain basic requisites concerning specifics of credits for certification are an integral part of minimum standards, other factors are important. Evaluation of staff and programs cannot be based exclusively on statistical or quantitative measures. The results of the school program must be considered as part of the evaluation which depends to a great extent upon the professional judgment of the evaluators.
* * *
Recommendations for educational requirements for subjects taught on the secondary level may be found on the following pages.
* * *
x. Junior High or Departmentalized Upper Elementary Grades
18 semester hours in each field, including at least five semester hours in each course where subject matter areas are divided into two or more specific courses. This requirement applies to teachers of the 6th, 7th and/or 8th grade where the organizational pattern is a junior high or the instructional pattern is in part or entirely departmentalized. When departmentalized in part, the requirement only applies to the departmentalized teachers.”

Petitioner contends that A—160 nullifies article 21 of the School Code and is therefore ultra vires and void. In other words, petitioner’s contention is that the Superintendent lacked the statutory authority to promulgate A—160. The powers and duties of the Superintendent are set forth in article 2 of the School Code (Ill. Rev. Stat. 1973, ch. 122, pars. 2—1 through 2—3.39). Section 2— 3.3 directs the Superintendent to supervise the public schools. Section 2—3.6 directs him to make rules to carry into effect all laws for establishing and maintaining free schools. Finally, section 2—3.25 directs him to determine “efficient and adequate standards for the physical plant, heating, lighting, ventilation, sanitation, safety, equipment and supplies, instruction and teaching, curriculum, library, operation, maintenance, administration and supervision, and to grant certificates of recognition to schools meeting such standards by attendance centers or school districts ***.’’ (Emphasis added.) The Board asserts that all three of these sections provide the statutory authority for A—160. The appellate court noted that these provisions delegated broad powers to the Superintendent, but focused specifically on section 2—3.25 as the provision which granted authority to the Superintendent to enact the A — 160 standards in question. We agree with and adopt the appellate court’s opinion on this point. As stated, article 21 sets forth the general requirements for teacher certification in Illinois. A — 160 does not impose additional prerequisites for certification but, rather, requires that secondary and certain upper elementary teachers have a specific minimum number of semester hours in each field to be taught. Promulgation of such semester-hour requirements was within the Superintendent’s delegated authority.

Petitioner contends that he is “legally qualified” even if the Superintendent is found to have authority to establish teaching standards. The evidence reveals that Carter taught mathematics and other subjects to sixth-grade students at the time in question. The Board asserts that the mathematics class taught by Carter was departmentalized, and that, because petitioner had substantially less than 18 semester hours of mathematics, he did not meet the requirements of section 9 — 5(x) of A — 160. Thus, according to the Board, petitioner was not entitled to take over the teaching position held by Carter. Petitioner argues that the mathematics class was not in fact departmentalized, and did not, therefore, require a teacher with 18 semester hours of mathematics. The evidence, however, is to the contrary. “Departmentalization” had been defined in a policy statement by the Director of Recognition and Supervision in the Illinois Office of Education as “any variation from a ‘home room’ or ‘self-contained’ type of instructional pattern. Variations could range from total departmentalization to a single class period per day outside the self-contained room.” The evidence indicates that, according to student needs, some of the students in Carter’s sixth-grade class were moved to other rooms to be taught mathematics by other teachers while students other than Carter’s were moved to his room to be taught mathematics by him. This evidence satisfies us that mathematics was taught in a departmentalized fashion.

Petitioner contends that it is arbitrary and discriminatory to impose higher standards on a teacher merely because that teacher is in a departmentalized situation. We feel, however, that there is a rational basis for the distinction. (See, e.g., Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 511; Edelen v. Hogsett (1969, 44 Ill. 2d 215, 221.) Departmentalized teaching situations tend to require specialized training on the part of the teachers. The departmentalization here was based on student needs. There is no evidence that the classes were designated “departmentalized” as a pretext by which the Board could avoid petitioner’s reinstatement.

Petitioner, who had taken only two mathematics courses in college, further asserts that he could have taken the additional mathematics courses necessary. The Board, under section 24 — 12 of the School Code, had to make its decision and notify petitioner at least 60 days before the end of the 1973-74 school year. It could not base a decision to retain petitioner on speculation that he could or would take the additional courses he would need to meet the 18-semester-hour requirement.

It is petitioner’s contention that the specific standards in A — 160 are unreasonable, arbitrary, and discriminatory. In support of this contention, he alleges that the standards were not applied consistently and that it was possible that other school districts ignored the standards. Such allegations, if substantiated, would more appropriately be directed to the State Board of Education, which has assumed the powers and duties of the Superintendent (see Ill. Rev. Stat. 1973, ch. 122, par. 1A — 3).

Petitioner also points out that section 9 — 5(x) was revised in 1974 to allow teachers five years in which to gain the necessary 18 semester hours. Consideration of the 1974 revision, however, does not persuade us that the prior version was unreasonable.

Petitioner lastly contends that A — 160 violates the purpose of the Illinois teacher tenure act, in that it allows the Board to use its discretion in an arbitrary and capricious manner. On the contrary, rather than providing school boards with unbridled discretion over teacher dismissals, A — 160 furnishes objective standards for measuring a teacher’s qualification under section 24 — 12 of the School Code. Moreover, according to the testimony of both the Superintendent of School District No. 112 and the Director of the Department of Recognition and Supervision, these standards are mandatory, a requisite condition to qualify for aid from the common school aid fund. In our opinion, such objective, specific requirements are in furtherance of the object of the teacher tenure act, which is to assure continuous service on the part of teachers of ability and experience. Donahoo v. Board of Education (1952), 413 Ill. 422, 425.

We conclude that the A — 160 standards for teachers, promulgated by the Superintendent pursuant to authority delegated by the School Code, are to be incorporated into the meaning of the phrase “legally qualified” as it appears in section 24 — 12 of the Code. Because petitioner did not meet the A — 160 standards for the teaching position held by Carter, he was not “legally qualified” for that position and therefore not entitled to be reinstated.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 50695.
    FIRESTONE TIRE AND RUBBER COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al.— (Sylvan E. Gray, Appellee.)

      Opinion filed January 12, 1979.

      Henry D. Noetzel & Associates, of Peoria (Henry D. Noetzel and William G. Gillies, of counsel), for appellant.
    William A. Mueller, Jr., of Markowitz, Lawrence, Jennings, Naylor & Mueller, of Bloomington, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent, Firestone Tire and Rubber Company, appeals directly to this court (Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a))) from the order of the circuit court of McLean County entered upon allowance of the motion of petitioner, Sylvan E. Gray, to quash the writ of certiorari issued pursuant to section 19(f)(1) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(f)(1)).

On April 12, 1977, an arbitrator for the Industrial Commission found that petitioner was injured while in the employ of the respondent and awarded him compensation for a period of temporary total disability and for the permanent and complete loss of 15% of the use of his right leg. A petition for review of the arbitrator’s decision filed by respondent was stamped “Received” by the Commission on May 27, 1977. The Industrial Commission dismissed respondent’s petition for review for failure to file the petition within 15 days of receipt of the arbitrator’s decision. (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b).) Respondent sued out a writ of certiorari, which petitioner moved to quash on the ground that “the circuit court was without jurisdiction to review the award of the Industrial Commission because the party seeking review had failed to file a bond to secure payment of the award.” The circuit court allowed the motion to quash and this appeal followed.

Section 19(f)(2) of the Workmen’s Compensation Act in pertinent part provides:

“No such writ of certiorari shall issue unless the one against whom the Commission shall have rendered an award for the payment of money shall upon the filing of his praecipe for such writ file with the clerk of the court a bond conditioned that if he shall not successfully prosecute the writ, he will pay the award and the costs of the proceedings in said courts. The amount of the bond shall be fixed by any member of the Commission and the surety or sureties of the bond shall be approved by the clerk of the court. The acceptance of the bond by the clerk of the court shall constitute evidence of the approval of the bond.”

The Commission’s order dismissing respondent’s petition for review contained no provision fixing the amount of the bond. Respondent argues that “the burden of requesting the bond should be on the party for whose benefit the bond is set”; that “since no demand was made by employee he should be estopped from asserting the failure to post the bond as grounds for dismissal”; and that “by setting no bond the Commission in effect set bond at zero.”

In Boalbey v. Industrial Com. (1977), 66 Ill. 2d 217, 218, the court said:

“This court has stated that the circuit court has special statutory jurisdiction to review a decision of the Industrial Commission (under section 19(f) of the Act), but that the court has only those powers conferred by the statute. (Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 262; Peter H. Clark Lodge No. 483 v. Industrial Com. (1971), 48 Ill. 2d 64, 69, and cases cited therein.) The corollary to the above proposition is that compliance with the statutorily prescribed conditions is necessary before the circuit court obtains subject matter jurisdiction. Peter H. Clark Lodge No. 483 v. Industrial Com. (1971), 48 Ill. 2d 64, 70, 71; Moweaqua Coal Mining & Manufacturing Co. v. Industrial Com. (1926), 322 Ill. 403, 405.”

In Village of Glencoe v. Industrial Com. (1933), 354 Ill. 190, it was held that the filing of the bond pursuant to the statute was a jurisdictional requirement and in its absence the court was without jurisdiction. Although in Republic Steel Corp. v. Industrial Com. (1964), 30 Ill. 2d 311, Village of Glencoe was overruled to the extent that it had required, in addition to the filing of the bond, that it be approved by the clerk, the holding that the filing of the bond was requisite to conferring jurisdiction upon the circuit court was not modified.

We have considered respondent’s contentions that because petitioner drew the order entered by the Industrial Commission, the failure to provide for a bond was a waiver of the requirement or, alternatively, that in failing to set the amount of bond “the Commission in effect set bond at zero,” and we find both unacceptable. There was available to respondent the method provided in section 19(f) of the Workmen’s Compensation Act for the correction of errors in a decision, and it should have, within the time provided, sought an order fixing the amount of the bond.

In view of the conclusion reached that the court properly quashed the writ of certiorari, we need not and do not consider respondent’s contentions concerning the timeliness of the filing of its petition for review before the Industrial Commission.

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

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 50579.
    STERLING STEEL CASTING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(George W. Godare, Appellee.)

      Opinion filed January 12, 1979.

      William L. Rogers, of Keefe & De Pauli, P.C., of East St. Louis, for appellant.
    C.E. Heiligenstein and Brad L. Badgley, of Belleville, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

In July 1975, George W. Godare injured his back while working for Sterling Steel Casting Company. An arbitrator for the Industrial Commission awarded him workmen’s compensation for total and permanent disability. The award was affirmed by the Industrial Commission and confirmed by the circuit court of St. Clair County. This appeal to this court by Sterling Steel was taken under Rule 302(a) (58 Ill. 2d R. 302(a)).

Two issues are posed by this appeal: whether the total and permanent disability award is against the manifest weight of the evidence, and whether the claimant’s proof was sufficient to establish that he was not employable. In both areas we find that the circuit court should be affirmed.

On July 10, 1975, Godare felt a sharp pain in his back as he lifted a 70- to 80-pound flask, but he continued to work until his vacation on July 25. The claimant experienced severe back pain and did not return to work following his vacation until December 15. He worked until January 26, 1976, but has not worked since that date. At the time of the accident, Godare was 53 and had worked 26 years doing heavy manual labor for Sterling Steel.

The claimant has been examined and treated by numerous doctors. On August 8, 1975, he was treated by Dr. Ray Muschany, a chiropractor. He was then referred by Sterling Steel to an osteopath, and on October 8, 1975, he saw Dr. Robert Kuhlman, an orthopedic surgeon. Dr. Kuhlman testified that on October 8 he prescribed a back brace for Godare and diagnosed his condition as a degenerative back disease originating prior to July 10, 1975. The brace was not purchased until April 13, 1976. Godare was also examined by the company doctor, Dr. Dubeck, and by other doctors of his own choosing.

In April 1976, at his attorney’s request, Godare was examined by Dr. Lloyd Hill, another orthopedic surgeon. During the evidence deposition, Dr. Hill indicated that Godare suffered from nerve-root damage, and he was, in Dr. Hill’s opinion, permanently disabled from doing any work requiring physical labor.

In addition to the medical testimony, there was also testimony introduced before the Industrial Commission concerning Godare’s physical activity. A private investigator testified that he had seen Godare performing normal maintenance activities at a neighborhood laundromat. In addition, a neighbor testified that she had seen Godare working in his garden and walking normally. Mrs. Godare, however, testified that she was in charge of maintenance at the laundromat. Her husband had helped on the weekend the investigator saw him because she was changing jobs. She had also been working at a restaurant and on that weekend was starting to work as a nurse’s aide. Because she was working two jobs, her husband occasionally helped with light chores at the laundromat. She also testified that he did no heavy work and did not work at the laundromat on a regular basis. Godare himself testified that he tried to do some work outside but could not work for more than a very short period of time. In addition, he testified that he had constant pain, radiating from his back into his left leg.

It appears that Godare was approached several times to complete a group insurance form for non-work-connected disability benefits. Though he completed it on one occasion, he subsequently refused the coverage because he believed the injury occurred on the job. The form could have been used to claim total disability for accidents occurring outside of work.

This court has often stated that it will not reverse the findings of the Industrial Commission unless they are against the manifest weight of the evidence. (Ferrin Cooperative Equity Exchange v. Industrial Com. (1976), 64 Ill. 2d 445, 448-49; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 259.) Where conflicting medical evidence is introduced, it is the Commission’s responsibility to resolve the dispute, and we will not reverse its finding simply because an opposite inference may be drawn from the testimony. C.R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 279.

Here, the primary dispute revolves around the finding of total and permanent disability. Such a finding is justified where a claimant’s contribution to industry would not be sufficient to justify paying him wages (Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 320; Ford Motor Co. v. Industrial Com. (1934), 355 Ill. 490), and that conclusion is based on “the claimant’s injury, the nature of his employment, his age, experience, training and capabilities” (Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 320). Godare was 53 at the time of this accident, and he had performed heavy manual labor for at least 26 years. He has been treated for severe back problems, and at least one doctor felt he could never again perform physical labor. Though there is conflicting evidence on Godare’s activities around his home, he has not returned to a paying job since January of 1976. It is the duty of the Industrial Commission to resolve disputed issues of fact, and in light of this evidence we cannot say that the finding of the Commission of permanent and total disability is against the manifest weight of the evidence.

The employer contends that the employee, “within his physical limitations,” must make an honest effort to seek suitable employment and that Godare made no such effort. The evidence shows that Godare went to his employer and requested light work. He was told to come back after he had obtained the back brace that had been recommended. He did so, and the employer referred him to Dr. Dubeck, the company doctor, who would not release him for work. The employer now seems to be urging some variation of the “odd-lot” category requirement, a term used to refer to those who are employable in only a limited capacity. In such cases, the burden is on the employee to initially prove that his condition is such that he is unable to perform any services for which there is a reasonably stable market. The burden then shifts to the employer to show that some kind of suitable work is regularly and continuously available. (2 A. Larson, Workmen’s Compensation, secs. 57.51, 57.61 (1976); E.R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353.) Here, the Industrial Commission found that Godare was permanently and totally disabled. It has not been established that he falls within the so called “odd-lot” category, because the evidence does not show that he is employable in any limited or restricted capacity. Assuming that the Industrial Commission resolved the conflicts in the evidence in favor of Godare, the most that has been shown is that he has been able to perform some light chores requiring a minimum of physical effort for some extremely short periods of time. Such activities include turning switches on and off in the laundromat, removing some snow from the walk in front of the laundromat, and working in his yard and garden. The duration of such activities extended from a few minutes to a half hour. The evidence just does not establish that he is employable in any limited capacity, and the finding by the Industrial Commission that he is totally and permanently disabled is not contrary to the manifest weight of the evidence. It was not necessary, under these circumstances, for the employee to prove that he unsuccessfully attempted to seek other employment.

For the reasons stated, the judgment of the circuit court of St. Clair County is affirmed.

Judgment affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 50369.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. HAROLD GRAVES.—(John L. Barton, Appellant.)

      Opinion filed January 12, 1979.

      RYAN, J., took no part.
    John L. Barton, of Marseilles, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and James A. Devine, of Chicago, of counsel), for the People.
    Thomas P. Durkin, for amicus curiae Illinois Association of Criminal Defense Lawyers, Inc., of Chicago.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

John L. Barton, a licensed attorney and appointed counsel in a case against Harold Graves (see People v. Graves (1977), 54 Ill. App. 3d 1027) was found guilty of contempt for his conduct at the trial of the case in the circuit court of La SaUe County. The appellate court, with one justice dissenting, affirmed (54 Ill. App. 3d 860), and we allowed Barton’s petition for leave to appeal under Supreme Court Rule 315 (65 Ill. 2d R. 315).

Barton was appointed to represent Harold Graves in a criminal prosecution in the circuit court of La Salle County. Graves and an alleged accomplice, Mickey Board-man, were both charged, inter alia, with armed robbery. Boardman agreed with the prosecution that he would testify on behalf of the State and against Graves, plead guilty to the lesser offense of burglary, and receive one year probation.

On cross-examination of Boardman, Barton sought to impeach Boardman by having the witness relate the facts pertaining to the agreement with the prosecution. Of particular concern for our purposes are those questions posed by Barton which sought to expose Boardman’s knowledge of possible penalties for armed robbery. In reference to Boardman’s agreement with the prosecution, Barton asked, “And what were you looking at if you didn’t take that deal?” The State’s Attorney made a general objection, which the court sustained on the ground that Graves was charged with the same offense as Boardman and “that the penalty ought not to be mentioned to the jury.” The purpose of this ruling was to avoid prejudice to the State which might result if the jury were informed of the penalty that Graves might receive if convicted.

At the same time, however, the court acknowledged Barton’s legitimate desire to “show that *** the witness got something in return for testifying.” (See People v. Norwood (1973), 54 Ill. 2d 253.) Following a short side-bar discussion, the court determined that certain questions, as formulated, could be asked:

“THE COURT: I will allow you to ask the question in this form, what did the police tell you you were going to get if you didn’t testify?
MR. YACKLEY [Assistant State’s Attorney]: If I could, could I suggest a question, did you know that you would get substantially more?
THE COURT: No, I think that is the first question you should ask, then the second one, what did the police tell you because that is what is in his mind.”

Shortly thereafter, the court reiterated: “But first the preliminary question he suggested then the question that I say and I’ll allow it to be asked and answered in that form because we have to know what is in his mind. That is what is important not what actually he could get. He might not even know.” In response, Barton expressed his understanding of the court’s ruling, stating, “I’m sure that is what he is going to testify, Judge.”

At the close of these discussions, the witness was recalled and Barton resumed cross-examination:

“MR. BARTON: Mr. Boardman, you’re charged with Armed Robbery in this case, aren’t you?
A. Yes.
Q. And you can’t get probation for Armed Robbery, can you?
MR. YACKLEY: Objection, he has gone beyond what the Court permitted here.
THE COURT: Sustained.
MR. BARTON: As a matter of fact, you can get life imprisonment for Armed Robbery, can’t you?
MR. YACKLEY: Objection.
THE COURT: Take the jury out.
MR. YACKLEY: Objection, and I ask that the Court take some sanctions here.
THE COURT: Take the jury out. Mr. State’s Attorney, state your motion.
MR. YACKLEY: I say that the Court ought to impose some sort of sanctions on counsel for the Defendant. He has clearly violated the ruling of the Court, he has deflagrantly [szc] violated, the life in prison, it’s flagrant violation of the Court’s ruling.
THE COURT: It’s not only a flagrant violation, it’s an absolute misstatement of the law. You kindly show me in Chapter 38 where you can get life in prison. You deliberately misstated the law to the jury, you deliberately defied the Order of this Court not to mention the penalty. Finding you in wilful contempt of this Court and direct contempt and impose a fine of $50.00 this time.”

In this appeal, Barton raises various arguments as to why the trial court’s finding of contempt should be set aside. We find none of them to be of merit, and accordingly affirm the judgments of the circuit and appellate courts.

In People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 59-60, quoting In re Estate of Melody (1969), 42 Ill. 2d 451, 452, contempt of court was defined as “ ‘conduct calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute.’ ” Where, as here, the conduct in question is committed in the presence of the court, neither notice nor pleading is necessary; the contemnor may be punished summarily “because the acts occur in the presence of the judge and presumably within his personal observation and knowledge.” (People v. Gholson (1952), 412 Ill. 294, 299.) As a reviewing court, we determine whether there is sufficient evidence to support the finding of contempt (People v. Richardson (1947), 397 Ill. 84, 90) and whether the judge considered only facts within his personal knowledge. The latter requirement is peculiar to cases of direct contempt such as that involved here, and is warranted by the summary nature of direct contempt proceedings. People v. Loughran (1954), 2 Ill. 2d 258, 263.

Barton clearly failed to comply with the ruling of the court and propounded a series of questions which, by itself, impermissibly informed the jury of the seriousness of potential penalties facing the accused, Harold Graves. The finding of contempt was therefore proper, for, as the court stated in Faris v. Faris (1966), 35 Ill. 2d 305, 309, “If the court had jurisdiction of the subject matter and of the parties to the proceeding, then its order must be obeyed until such time as it is set aside by the issuing or reviewing court.”

We note also that, contrary to the claims of Barton, there is no constitutional infirmity in the trial judge’s finding of contempt. When certain matters are withdrawn from the consideration of the jury, counsel may not, through question or comment, expose the jury to the very matters withdrawn from its consideration, and a summary conviction of contempt based on such conduct is not a denial of due process. (Fisher v. Pace (1949), 336 U.S. 155, 93 L. Ed. 569, 69 S. Ct. 425.) It is Barton’s contention that the trial court’s ruling was ambiguous and that due process prohibits imposition of punishment in this situation. Having reviewed the record, we find no basis for the argument. The judge clearly proscribed inquiry into possible penalties for armed robbery and twice formulated the questions that could be asked. Barton expressed his understanding of the judge’s ruling, but shortly thereafter asked questions which not only deviated from those formulated by the court, but more importantly violated the prohibition specifically set out.

Because we have determined that the trial judge’s ruling was not ambiguous, we need not address Barton’s argument that a warning is essential to establish the requisite clarity in a trial judge’s ruling.

Barton finally contends that the trial judge’s disposition of the matter had a chilling effect on the accused’s right to present relevant evidence, citing language in the appellate court opinion in People v. Graves (1977), 54 Ill. App. 3d 1027, 1033, which disposed of Harold Graves’ appeal from a judgment of conviction. The appellate court there held that the effect of the trial court procedure which resulted in the finding of contempt was to impermissibly prevent the jury from being apprised of the deal which Boardman had made with the prosecution. The court also held that the error was harmless. (54 Ill. App. 3d 1027, 1033-34.) We express no opinion on the appellate court’s holdings in this regard, but merely hold that Barton may not seek redress for injury resulting from an alleged violation of the rights of those he represents and to which he himself is not entitled. In the usual case, one may not obtain relief for the infringement of rights which he does not personally hold. Only in exceptional situations may an individual successfully complain of a violation of the rights of others. (See, e.g., Grayned v. City of Rockford (1972), 408 U.S. 104, 114, 33 L. Ed. 2d 222, 231, 92 S. Ct. 2294, 2302 (first and fourteenth amendment overbreadth challenge).) We see no special circumstances in the case now before us which warrant adoption of a similar exception to accommodate the argument made by Barton.

The judgments o0f the circuit and appellate courts are affirmed.

Judgments affirmed.

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