text:
    (Nos. 53655, 53657 cons.
    NORMA RELPH, Appellee, v. THE BOARD OF EDUCATION OF DePUE UNIT SCHOOL DISTRICT NO. 103, Appellant. — ROBERT B. HAGOPIAN et al., Appellees, v. THE BOARD OF TAMPICO COMMUNITY UNIT SCHOOL DISTRICT NO. 4, Appellant.

      Opinion filed March 31, 1981.

      Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellants.
    Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd. (Allen D. Schwartz and S. Bennet Rodrick, of counsel), for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The original petitioners in these consolidated cases, Norma Relph, Robert B. Hagopian, and Mary E. Foley, were tenured teachers who were dismissed because of the economic conditions of their respective school districts. Section 24 — 12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12) provides that in such cases the board of education shall first remove nontenured teachers before removing a teacher who has attained tenured status and “who is legally qualified to hold' a position currently held by a teacher who has not entered upon contractual continued services.” The petitioners filed mandamus actions in their respective circuit courts, seeking to compel reinstatement by their boards of education, contending that they were legally qualified to hold positions then being held by nontenured teachers. The circuit courts entered summary judgments in favor of the respondents and the teachers appealed. In the first appeals in these cases, the appellate court affirmed the judgment in favor of the school board as to Hagopian (who is no longer in this case) but reversed and remanded to the circuit court as to Mary Foley in Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940. The court reversed and remanded as to Norma Relph in Relph v. Board of Education (1977), 51 Ill. App. 3d 1036.

Because both Mary Foley and Norma Relph possessed the appropriate teacher’s certificate the appellate court held that they were legally qualified. In Relph, the appellate court held that compliance with a regulation entitled “Circular Series A, Number 160” (now the State Board of Education Document No. 1) issued by the Illinois Office of Education was not required when determining whether a teacher is “legally qualified” within the meaning of section 24 — 12 of the School Code. (51 Ill. App. 3d 1036, 1041.) The regulation sets out additional educational requirements for teaching particular subjects beyond the appropriate teacher’s certificate as required by sections 21-1 and 21-5 of the School Code (Ill. Rev. Stat. 1977, ch. 122, pars. 21 — 1, 21 — 5). In both Relph and Hagopian, the cases were remanded to the trial courts with directions. Subsequent to remand, this court decided Lenard v. Board of Education (1979), 74 Ill. 2d 260. In Lenard, this court held that the provisions of Circular Series A, No. 160, were incorporated by reference into the term “legally qualified” in section 24 — 12 of the School Code. 74 Ill. 2d 260, 268-69.

Norma Relph’s case had been remanded to the circuit court of Bureau County with directions to enter judgment in favor of the petitioner consistent with the views expressed in the opinion. (51 Ill. App. 3d 1036, 1042.) On remand, Norma Relph, who had obtained employment elsewhere since her dismissal, sought damages for respondent’s failure to reinstate her. The board of education, relying upon our holding in Lenard, filed a motion asking the trial court to redetermine Norma Relph’s qualifications in light of Lenard. The trial court felt bound by the previous holding in the appellate court and entered judgment for damages in favor of Norma Relph and ordered that she be reinstated. The board of education appealed.

In Hagopian v. Board of Education, Mary Foley’s case had been remanded to the circuit court of Whiteside County with directions that the writ of mandamus should issue and that she should be reinstated as a tenured teacher. (56 Ill. App. 3d 940, 949.) The board of education had reinstated Mary Foley as a teacher after the appellate court’s decision was announced, and it appears that the trial court, on remand, did not issue a writ of mandamus. Mary Foley, as the sole remaining petitioner in that case, sought damages in the circuit court. However, since the mandate of the appellate court did not mention the award of damages, the trial court felt it had no authority to award them and denied Mary Foley’s prayer. In this case Mary Foley, the teacher, appealed.

In each case, on the second appeal to the appellate court, the board of education insisted that our opinion in Lenard should control and that the appellate court should reverse its previous holdings. The appellate court, however, held in each case, with one justice dissenting, that its prior opinions were res judicata between the parties on the issue of the teachers’ qualifications and could not be reexamined despite the Lenard decision. (Hagopian v. Board of Education (1980), 83 Ill. App. 3d 1097; Relph v. Board of Education (1980), 83 Ill. App. 3d 1139.) We granted leave to appeal pursuant to Rule 315(a) (73 Ill. 2d R. 315(a)) and consolidated the cases in this court.

The appellate court, in each case, based its holding that the prior decisions in those cases were res judicata upon the premise that those appeals had resulted in a final and conclusive order on the issue of petitioners’ qualifications. There is no doubt that the parties had had a full and fair opportunity to litigate the issue of whether petitioners were “legally qualified” prior to this court’s decision in Lenard. That fact, however, does not satisfy the finality requirement of the doctrine of res judicata.

The judgment of a court of competent jurisdiction, although it may be erroneous, is binding upon the parties until reversed and cannot be collaterally attacked. (People ex rel. First National Bank v. Russel (1918), 283 Ill. 520, 523.) However, before the judgment can stand as a bar to subsequent actions under the doctrine of res judicata, the first action must result in a final judgment on the merits. (People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65, 69; People v. Kidd (1947), 398 Ill. 405, 408-09.) A judgment is final if it determines the litigation on the merits so that if affirmed the only thing remaining is to proceed with the execution on the judgment. Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48.

The opinions of the appellate court acknowledge that on remand it was incumbent upon the trial courts to have further proceedings. In fact, the mandates directed further proceedings. However, it is now argued in this court that the remands were with specific directions and were not general in nature. Therefore, it is contended, the adjudication by the appellate court was final. We do not agree. On remand it was incumbent upon the trial courts to enter judgments. Although the courts may have been limited to the entry of judgments that conformed to the mandates of the appellate court, the judgments were nonetheless appealable. Section 6, article VI, of our constitution provides: “Appeals from final judgments of a circuit court are a matter of right ***.” (Ill. Const. 1970, art. VI, sec. 6.) The need for an appeal, even though a judgment can be entered only in conformance with the mandate, is apparent from Mary Foley’s case, where the trial court refused to award damages because it felt it had no authority to do so under the mandate. The appellate court, on appeal from this denial, held that it was within the scope of its original mandate to award damages. (Hagopian v. Board of Education (1980), 83 Ill. App. 3d 1097, 1101-02.) The issues in both cases therefore had not been finally adjudicated when the mandates of the appellate court issued. The cases, even after the entry of the judgments in the trial court, were still subject to the appellate process.

Even if the appellate court were bound by the law of the case it had announced in the first appeals, that limitation would not apply to this court. Although this court denied petitions for leave to appeal in both of the previous appeals of these cases, such action has no precedential effect and in no way amounts to a consideration of the merits of the cases. Nor does it indicate approval of the appellate court’s action. (People v. Vance (1979), 76 Ill. 2d 171, 183.) Therefore, this is the first time these cases have been before us on the merits. Our review may cover all matters properly raised and passed on in the course of litigation. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 113-14.) In Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 306, this court held that the law of the case is not applicable to this court in reviewing the judgment of the appellate court.

The judgments of the appellate court were not final judgments in the sense that they did not terminate the litigation but remanded the cases to the trial courts with directions that judgments be entered, which judgments, in turn, would be appealable to the appellate court under our constitution. The appellate court’s decisions, in turn, would then be subject to review by this court through petitions for leave to appeal. (73 Ill. 2d R. 315(a).) Since the judgments in these cases were still subject to the appellate process, they were not to be given res judicata effect. The most that can be said of the appellate court’s mandate in each case is that it established the law of the case.

There is a marked distinction, however, between a final judgment which is entitled to res judicata effect and, as here, a remand order establishing the law of the case. The former, if entered by a court of competent jurisdiction, is unassailable by any court, while the latter is subject to change by direct review, or because during the pendency of an appeal, the highest court of the State, in a separate case, changes the applicable law which the intermediate reviewing court would be bound to apply. The doctrine of the law of the case and the change-in-law exception to it was recognized in Zerulla v. Supreme Lodge Order of Mutual Protection (1906), 223 Ill. 518. In Zerulla this court stated that:

“Where the Appellate Court or this court, on the first appeal to it, announces a particular view of the law governing the case and reverses and remands the case for further proceedings in accordance with the views announced, if the case is again brought before such court for review the former decision is binding on the court making it, and the questions decided and determined by it on the first appeal are not open for re-consideration on the second appeal. But while the determination of a question of law by the Appellate Court on the first appeal may, as a general rule, be binding upon it on the second appeal, it certainly cannot be binding on this court. Nor would the Appellate Court on the second appeal, we apprehend, be obliged to adhere to a proposition of law laid down on the first appeal, when this court had, since the first appeal, decided the precise question contrary to the rule announced by the Appellate Court. To so hold would lead to most illogical results.” Zerulla v. Supreme Lodge Order of Mutual Protection (1906), 223 Ill. 518, 520.

We noted earlier that since this case is before us on the merits for the first time, we are not bound by any findings made by the appellate court and can simply decide this appeal based upon Lenard. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 113-14.) Also, inasmuch as our decision in Lenard was rendered after the mandates of the appellate court and before the final adjudication of these cases, the law of the case as announced by the appellate court was nullified by our decision in Lenard. Regardless of the mandates, to avoid “illogical results,” these cases should have been decided on their second appeal in accordance with the law announced in Lenard.

In Lenard, we held that the teacher must meet the semester-hour requirements contained in the applicable version of Circular Series A, No. 160, which specifically applied to departmentalized studies at the grade level for which reinstatement was sought. (74 Ill. 2d 260, 265.) The undisputed facts in that case established that Lenard did not meet those requirements. Therefore, he was not qualified to teach in the position available as a matter of law. (74 Ill. 2d 260, 269.) In the instant appeal the record establishes that Mary Foley sought reinstatement to a departmentalized program as a reading, mathematics, and music teacher. Although there is an indication that she did not possess the Circular Series A, No. 160, required semester hours for those classes, we find nothing in the record before us to indicate that she sought this position at a grade level to which the additional requirements of Circular Series A, No. 160, apply. Since we cannot determine the fact question of whether Mary Foley met the requirements in effect at the time she sought reinstatment, her cause must be remanded for further proceedings.

Similarly, although Norma Relph sought reinstatement to a teaching position in home economics at a level and in a program to which the Circular Series A, No. 160, subject matter requirements applied, there was also a position available to her as a reading teacher. The affidavits filed in support of the board’s motion for summary judgment established that Norma Relph was not qualified to teach economics. However, an affidavit filed on behalf of Norma Relph alleged that Circular Series A, No. 160, was silent as to any requirements beyond a valid certificate for teaching the subject of reading. Norma Relph possessed the required certificate. This allegation stands in direct conflict with statements contained in respondent’s affidavits that allege Norma Relph was not qualified under Circular Series A, No. 160, to teach in any of the available positions. This conflict presented a genuine issue of material fact as to Norma Relph’s qualifications to teach, reading thereby precluding this court from disposing of her case in this appeal.

On remand, the trial courts are instructed to determine the petitioners’ qualifications to teach under the applicable provisions of Circular Series A, No. 160, in effect at the time reinstatement was sought. If the court in either case determines that the petitioner therein is “legally qualified” to hold any of the then available positions, reinstatement should be compelled through issuance of the writ of mandamus and motions to award damages should be entertained.

Judgments reversed; causes remanded, with directions.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (No. 53105.
    UNITED AIR LINES, INC., Appellee, v. J. THOMAS JOHNSON, Director of Revenue, et al., Appellants.

      Opinion filed March 31, 1981.

      MORAN and SIMON, JJ., took no part.
    William J. Scott and Tyrone C. Fahner, Attorneys General, of Springfield (Joseph D. Keenan III, Assistant Attorney General, of counsel), for appellants.
    Paul M. Tschirhart and Joseph T. Kane, of Chicago (Philip J. Hogan, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case involves the application of the use tax exemption provided by section 3(c) of the Use Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 439.3(c)). The specific question is whether an Illinois taxpayer who, by contractual agreement, pays an Indiana seller’s Indiana gross income tax liability (Ind. Code sec. 6 — 2—1—1 et seq. (1978)) resulting from the sale of fuel may claim an exemption from its Illinois use tax liability equal to the amount of the Indiana taxes paid. We hold that it cannot.

This litigation began in 1963 when United Air Lines sought to enjoin collection of the Illinois use tax on aviation fuel purchased by United from the Shell Oil Company. The fuel was purchased in Indiana and stored in Illinois for use in United’s interstate operations from Illinois airports. After final determination that the tax was applicable (United Air Lines, Inc. v. Mahin (1971), 49 Ill. 2d 45, vacated and remanded (1973), 410 U.S. 623, 35 L. Ed. 2d 545, 93 S. Ct. 1186, affirmed on remand (1973), 54 Ill. 2d 431), United sought a refund from the protest fund into which it had previously paid the Illinois use tax. The requested refund was for an amount of money equal to the sum United paid to Shell Oil Company to satisfy the Indiana gross income tax obligation incurred by Shell as a result of the sale. An order of the circuit court of Cook County denying the refund was reversed by the appellate court. (79 Ill. App. 3d 1004.) Upon petition by the Department of Revenue, we granted leave to appeal pursuant to Rule 315(a) (73 Ill. 2d R. 315(a)).

The Illinois use tax is a tax upon the privilege of using personal property within this State. (United Air Lines, Inc. v. Mahin (1971), 49 Ill. 2d 45, 46.) To avoid “actual or likely multistate taxation,” several exemptions from use tax liability are provided in the Act. The exemption relevant to this case provides the tax imposed shall not apply to “the use, in this State, of tangible personal property which is acquired outside this State and caused to be brought into this State by a person who has already paid a tax in another State in respect to the sale, purchase or use of such property, to the extent of the amount of such tax so paid in such other State.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 120, par. 439.3(c).) The question before us is whether United has brought itself within this statutory exemption, thereby qualifying for a refund from the protest fund. In addition to the question concerning the applicability of the section 3(c) exemption to the facts of this case, United raised, and both sides have argued, the issue of whether article I, section 8 (the commerce clause) of the United States Constitution and the cases decided thereunder prohibit the denial of an exemption to United.

The Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 440 et seq.) was enacted in 1933. Originally, and as amended, the Act imposes a tax upon the privilege of retail selling within this State. The responsibility for paying the tax, which is measured as a percentage of the selling price, rests upon the retailer. (First Chicago Building Corp. v. Department of Revenue (1977), 49 Ill. App. 3d 237, 238.) The Act does, however, contain pass-through language that permits the seller to pass the tax on to the purchaser. (See, e.g., Ill. Rev. Stat. 1975, ch. 120, par. 441.) The Retailers’ Occupation Tax Act, however, could not reach purchases made outside the State. Consequently, a person purchasing personal property outside Illinois and subsequently transporting the property into the State avoided Illinois tax liability on the transaction.

In 1955, Illinois passed the Use Tax Act. (See Ill. Rev. Stat. 1977, ch. 120, par. 439.1 et seq.) Its basic purposes are to complement the Retailers’ Occupation Tax Act by preventing the evasion of tax on purchases made outside the State and to equalize the competitive disadvantage of Illinois retailers who face retailers’ occupation tax liability. (Illinois Road Equipment Co. v. Department of Revenue (1965), 32 Ill. 2d 576, 580.) As stated earlier, the Illinois use tax is imposed on the privilege of using personal property within the State. The tax imposed applies to all property used in Illinois regardless of where it was acquired. (Ill. Rev. Stat. 1977, ch. 120, par. 439.3.) The Use Tax Act complements the Retailers’ Occupation Tax Act in such a fashion so that an Illinois retailer who collects the use tax as an agent of the State is correspondingly relieved of his retailers’ occupation tax liability on the transaction. (Ill. Rev. Stat. 1977, ch. 120, par. 439.8.) On the other hand, purchasers who seek to avoid having the retailers’ occupation tax liability passed on to them by buying goods outside the State face use tax liability on goods they bring into Illinois.

Indiana imposes a tax burden directly upon retail purchasers. It does so through a combination gross retail sales and use tax. The gross retail sales tax act looks to the transaction of sale itself as the taxable event. (Ind. Code sec. 6 — 2—1—37 (1978).) Both Indiana use tax and gross retail sales tax place the taxing burden squarely upon the purchaser and relegate the duty of collection to the retailer. (Ind. Code secs. 6 — 2—1—44, 6 — 2—1—49 (1978).) These two Indiana taxes have been in effect since 1963. They function in much the same manner as the Illinois retailers’ occupation tax and use tax, including a provision which exempts from the Indiana use tax those transactions in which the gross retail sales tax has already been paid. Ind. Code sec. 6-2-1-43 (1978).

Indiana, however, imposes an additional burden upon all of its residents. Since 1933, prior to the enactment of its retail sales tax and use tax, Indiana has collected revenues under a statute that imposes a tax upon the receipt of income. (Ind. Code sec. 6 — 2—1—2 (1978).) Under the Indiana Gross Income Tax Act, the taxable event that gives rise to the obligation is the receipt of income. (International Harvester Co. v. Department of Treasury (1944), 322 U.S. 340, 346, 88 L. Ed. 1313, 1317, 64 S. Ct. 1019, 1022; Gross Income Tax Division v. P.F. Goodrich Corp. (1973), 260 Ind. 41, 292 N.E.2d 247.) The Indiana gross income tax is specifically levied upon the privilege of receiving income. (Miles v. Department of Treasury (1935), 209 Ind. 172, 199 N.E. 372; Department of Treasury v. Jackson (1941), 110 Ind. App. 36, 37 N.E.2d 31.) The tax is levied upon all income, regardless of its source, based upon a percentage of the gross amount received in various transactions. While the tax applies to numerous business dealings, including the sale of personal property, it is also levied against earned wages and transactions in which no business is conducted at all. (Ind. Code sec. 6 — 2—1—1 (m) (1978).) As applied to sales, the tax is measured as a percentage of the gross amount received regardless of gain. Gross income, as used in the Indiana Act, does not mean total sales less cost of goods sold, but in fact means gross receipts. (Kroger Co. v. Department of Revenue (Ky. App. 1977), 556 S.W.2d 156; Ind. Code sec. 6 — 2—1—3(c) (1978).) However, the tax is not imposed on a sale-by-sale basis, but upon the gross amount received from the aggregate of all sales. (See Ind. Code sec. 6 — 2—1—15 (1978).) This tax is expressly levied in addition to all other taxes. Ind. Code sec. 6 — 2—1—2 (1978).

In this case we are concerned only with the interaction of the Indiana gross income tax and the section 3(c) exemption from the Illinois use tax. Indiana’s gross retail sales tax or its use tax is not involved. The factors which distinguish Indiana’s gross income tax from both its gross retail sales and use tax are that the gross income tax applies to the receipt of all income and is levied upon the person receiving it. Although in the case of retail sales transactions the gross income tax may in fact be passed on to purchasers, nothing in the Indiana statutes suggests that this practice is required or authorized. In fact, Regulation 404 of the Gross Income Tax Division of the State of Indiana provided:

“Passing the Tax on. — Since the gross income tax Act is silent upon the matter of adding this tax to the selling price or charges, the adding of such tax to such selling price or charges must be entirely a matter of contractual agreement between the buyer and the seller, and the Department will therefore neither authorize the adding of the tax nor condemn the failure to do so, and will look only to the taxpayer for the tax upon his total gross receipts. Since taxpayers are not made the agents of the State to collect gross income tax, any amount added as the tax and collected by a taxpayer must be considered as an additional price received, and will be a part of the gross receipts of a taxpayer and must be reported as taxable income. ” (Emphasis added.) (This regulation was repealed in January 1956 and replaced by Instruction 2 — 2 in substantially the same language.)

The Indiana gross income tax is not a tax on the sales transaction. With respect to the purchaser in a sales transaction, the Indiana gross income tax imposes no burden at all.

Section 3(c) of our Use Tax Act, which we quote above, exempts from the payment of that tax those who have paid a tax in another State “in respect to the sale, purchase or use of such property.” United points out that this exemption does not apply only to those who have paid a sales tax or a use tax in another State. It is United’s position that the tax it paid in Indiana, though not a sales tax or a use tax, was, nonetheless, a tax in respect to the sale of property and thus falls within the language of the use tax exemption.

United relies heavily upon a statement made by the Kentucky Appellate Court in Kroger Co. v. Department of Revenue (Ky. App. 1977), 556 S.W.2d 156. In that case the court stated that the Indiana gross income tax “is the functional equivalent of a sales tax.” (556 S.W.2d 156, 158-59.) Thus, United argues, the tax is a tax in respect to the sale of property and its payment entitles United to an exemption under section 3(c) of our Use Tax Act. The language in Kroger must be viewed in the context of that case. The court was there determining whether the Kroger Company could deduct the Indiana gross income tax in computing its Kentucky corporation income tax liability. The court pointed out that under the Indiana statute, the term “gross income” has a different meaning than it does under the Internal Revenue Code, where it means total sales less costs of goods sold. Under the Indiana statute, “gross income” means gross receipts and is unrelated to any concept of gain. In this respect the term does resemble a sales tax, in that it is to be treated the same as a sales tax and is therefore deductible in arriving at net income taxable under the Kentucky statute. The court, in stating that the Indiana tax is the functional equivalent of a sales tax, was not attempting to define the taxable event or the person upon whom the incidence of taxation is to fall.

We have noted that the Indiana gross income tax is levied on the privilege of earning or receiving income. It is not, as United’s brief argues, a tax on the privilege of doing business in Indiana. In Department of Treasury v. Jackson (1941), 110 Ind. App. 36, 43, 37 N.E.2d 31, 34, the court said that the Indiana act does not impose an occupational tax. In Mann v. Schnarr (1950), 228 Ind. 654, 95 N.E.2d 138, the court considered the allocation of certain contractor’s costs under the mechanic’s lien statute. The court held that operating costs were properly included as work and material under the mechanic’s hen statute, but items classified as overhead were not. The court held that workmen’s compensation insurance, as well as social security taxes, were properly included as operating costs. However, the amount of gross income tax attributable to the transaction was not. “The gross income tax paid to the state is a direct tax upon the contractor and not an operating cost, but rather an overhead charge.” Mann v. Schnarr (1950), 228 Ind. 654, 667, 95 N.E.2d 138, 143.

We conclude that the Indiana gross income tax is not a tax “in respect to the sale, purchase or use of” property within the meaning of section 3(c) of our Use Tax Act. The mere fact that United contracted to pay Shell’s gross income tax liability does not entitle United to an exemption from the Illinois use tax any more than if United would have contracted to pay any other of Shell’s direct tax obligations or overhead charges.

United also relies on Philco Corp. v. Department of Revenue (1968), 40 Ill. 2d 312, and argues that it is irrelevant that Shell was actually the taxpayer in Indiana as long as the economic consequences fell on United. In Philco, Rental Equipment, Inc. was engaged in the business of leasing heavy equipment. It leased equipment to contractors for use on construction projects in Illinois. The Department of Revenue assessed use taxes against Rental for the use of its equipment in Illinois and refused to allow Rental credit for Missouri sales taxes paid on equipment previously leased to Missouri residents because Rental had passed that tax on to its customers. This court held that the purpose of the exemption in section 3(c) was to prevent actual or likely multistate taxation and that that purpose would not be served by centering on the identity of the person who made the payment. Thus the fact that Rental had passed the tax on to the Missouri lessees was not important. Instead, the focus was on whether the tax paid in Missouri was the type of tax for which the General Assembly intended to give credit against use tax liability. This court found that the tax paid by the Missouri lessees was a sales tax, and accordingly Rental was entitled to a credit in that amount against its use tax liability in Illinois. Philco does not support United’s position. In that case it was determined that the tax Rental had passed on to the Missouri lessees was the type of tax for which the General Assembly intended to give credit; that is, a sales tax. We have concluded here that the Indiana gross income tax is not a tax with respect to the sale of property and thus is not the type of tax for which the General Assembly intended that a credit against use tax liability should be allowed.

A person claiming an exemption from taxation has the burden of proving clearly that he comes within the statutory exemption. Such exemptions are to be strictly construed, and doubts concerning the applicability of the exemptions will be resolved in favor of taxation. (Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill. 2d 51, 62; Telco Leasing, Inc. v. Allphin (1976), 63 Ill. 2d 305, 310, Heller v. Fergus Ford, Inc. (1975), 59 Ill. 2d 576, 579.) Every presumption is against the intention to exempt property from taxation. (Follett’s Book & Supply Store, Inc. v. Isaacs (1963), 27 Ill. 2d 600, 606.) We therefore decline to construe the exemption granted in section 3 (c) to exempt from Illinois use tax liability amounts paid by United as Indiana gross income tax attributable to the sale of fuel by Shell.

We also do not believe that the failure to grant United an exemption would subject United to unconstitutional multistate taxation. United’s obligation to pay the amount of the Indiana gross income tax attributable to the sale of fuel arose not from an imposition of a tax on United by the State of Indiana, or even from the imposition of a tax upon the sale of fuel. United’s obligation arose instead by virtue of its contract with Shell to pay Shell’s gross income tax. The payment by United of the Illinois use tax on fuel it had purchased from Shell, and the assumption by United of the direct tax which Indiana imposed upon Shell as a result of the purchase, do not constitute multistate imposition of taxes upon United.

The Illinois use tax and the Indiana gross income tax, as applied in this case, both have been levied upon separate and distinct taxable events and do not constitute an unconstitutional burden on interstate commerce. In Henneford v. Silas Mason Co. (1937), 300 U.S. 577, 81 L. Ed. 814, 57 S. Ct. 524, the Supreme Court, in considering the Washington use tax on chattels purchased in another State, discussed the nature of the use tax. The court stated that the tax is not upon interstate commerce but upon the privilege of use after commerce is at an end. “The privilege of use is only one attribute, among many, of the bundle of privileges that make up property of ownership.” (Henneford v. Silas Mason Co. (1937), 300 U.S. 577, 582, 81 L. Ed. 814, 818, 57 S. Ct. 524, 526-27.) In the opinion of this court in its first decision in the present litigation (49 Ill. 2d 45), it was held that both the storage of the fuel in Illinois and its withdrawal from storage are taxable events that do not offend the commerce clause of the Federal Constitution. (49 Ill. 2d 45, 56.) The United States Supreme Court upheld this court’s determination that the taxable event was the storage of the fuel and not its use in interstate commerce. It noted that a State in which storage facilities are maintained is likely to provide substantial services to those facilities. United Air Lines, Inc. v. Mahin (1973), 410 U.S. 623, 629-30, 35 L. Ed. 2d 545, 552-53, 93 S. Ct. 1186, 1190-91.

In J.D. Adams Manufacturing Co. v. Storen (1938), 304 U.S. 307, 82 L. Ed. 1365, 58 S. Ct. 913, the Indiana gross income tax, as applied in that case, was held invalid as a burden on interstate commerce. There the tax was levied on the gross receipts of a company 80% of whose sales were made and shipped to customers in other States and foreign countries. However, in Department of Treasury v. Wood Preserving Corp. (1941), 313 U.S. 62, 85 L. Ed. 1188, 61 S. Ct. 685, the sale was consummated and the delivery to the purchaser was made in Indiana. The gross income tax measured by the gross receipts on that transaction was held not to burden interstate commerce. The court distinguished J.D. Adams Manufacturing Co. v. Storen, pointing out that in that case the tax was on gross receipts derived from sales in other States and thus was laid upon receipts from sales made in interstate commerce. By contrast, in Wood Preserving Corporation the tax was upon gross receipts from a purely intrastate transaction. The fact that the purchaser immediately shipped the purchased material out of the State of Indiana would not alter the nature of the taxable event (receipt of income) as a purely local event. In International Harvester Co. v. Department of Treasury (1944), 322 U.S. 340, 88 L. Ed. 1313, 64 S. Ct. 1019, the court again considered the Indiana gross income tax in relation to the prohibition of the commerce clause of the Federal Constitution. In each of the three situations considered in that case, the court found that a purely local transaction gave rise to the taxable event, which was separate and distinct from the transportation in interstate commerce.

Under the above authority we must conclude that under the facts of our case there were two separate and distinct taxable events upon which the local State could properly impose a tax: Shell’s privilege of receiving income in Indiana and United’s privilege of using the fuel by storage and withdrawal in Illinois. Although neither the Indiana tax nor the Illinois tax is a tax on the operations of commerce as such, we must consider whether the imposition of the Illinois use tax in this case constitutes a discrimination against items traveling in interstate commerce. Both a tax on the operation of commerce and a discrimination against it constitute interference with commerce. The prohibited burden on commerce is created by such interference. Southern Pacific Co. v. Gallagher (1939), 306 U.S. 167, 177-78, 83 L. Ed. 586, 593, 59 S. Ct. 389, 393-94.

The Supreme Court in International Harvester v. Department of Treasury declined to consider the question of multistate taxation. It was argued in that case that certain of the sales made by the Indiana company would be subject to double taxation because retail merchants in Illinois would be subject to the Illinois retailers’ occupation tax even though the orders for the sales were accepted outside the State of Illinois and the property was transferred in another State. In reply to that argument, the Supreme Court simply said, “But it will be time to cross that bridge when we come to it.” (International Harvester Co. v. Department of Treasury (1944), 322 U.S. 340, 348, 88 L. Ed 1313, 1319, 64 S. Ct. 1019, 1023.) The court did point out, however, that such a problem is not like that of an attempted tax on the gross proceeds of an interstate sale by both the State of the buyer and the State of the seller, which the court had held in J.D. Adams Manufacturing Co. v. Storen violated the commerce clause. The court stated that the hand of the Indiana tax collector will not be withheld simply because the property purchased and delivered in Indiana and taken out of the State by the buyer may be the subject of a sales tax or a use tax in another State. Also, in Henneford v. Silas Mason Co. the Washington use tax under consideration specifically provided that it did not apply to the use of any article, the sale or use of which had already been taxed equal to the tax imposed by the Act. The Supreme Court noted that the exemption thus created applied to all transactions and not only to those on which the tax had been paid in Washington. It added, however, that by its discussion it did not imply that it was mandating that like allowances be made for taxes paid to other States. The court stated that if there are limits to the State’s power in this regard “there is no need to mark them now. It will be time enough to mark them when a taxpayer paying in the state of origin is compelled to pay again in the state of destination.” (Henneford v. Silas Mason Co. (1937), 300 U.S. 577, 587, 81 L. Ed. 814, 821, 57 S. Ct. 524, 529.) Thus in both of the above cases the Supreme Court declined to consider whether a tax imposed by both the State of the seller and the State of the buyer violated the commerce clause. The Supreme Court in Southern Pacific considered the application of the California use tax to items purchased outside the State. It noted that the California statute had no provision for a tax credit similar to that contained in the Washington statute considered in Henneford. Since the issue had not been raised, the court in Southern Pacific again declined to pass on the question of double taxation. However, after stating that discrimination against commerce or a tax on its operation constitutes an interference with commerce, the court stated:

“A tax on property or upon a taxable event in the state, apart from operation, does not interfere. This is a practical adjustment of the right of the state to revenue from the instrumentalities of commerce and the obligation of the state to leave the regulation of interstate and foreign commerce to the Congress.” (Emphasis added.) (Southern Pacific Co. v. Gallagher (1939), 306 U.S. 167, 178, 83 L. Ed. 586, 593, 59 S. Ct. 389, 394.)

These three cases indicate that each jurisdiction in which a local taxable event occurs in relation to goods shipped in interstate commerce, apart from the operation of commerce itself, may constitutionally impose a tax upon the taxable event that occurs within its borders.

We need not decide this issue solely on that basis. Here, United is not seeking credit against its Illinois use tax liability for the sales tax it paid in Indiana on the purchase of the fuel in question. That situation would present a question similar to that considered in the three cases above. The tax for which United is seeking credit here was not one imposed on it by law, but was assumed by it through its contract with Shell, who was lawfully obligated for the tax because it had received income from the sale of fuel to United in Indiana. Thus, United paid a tax in both Indiana and Illinois not because both jurisdictions had imposed the tax on it, but because it had voluntarily assumed the Indiana tax, which it was not obligated by law to do. The fact that United assumed payment of the Indiana tax does not make the Illinois use tax discriminatory. All United did was to assume that part of Shell’s overhead attributable to the sale of fuel to United. This does not constitute a discrimination against commerce any more than would an assumption by United to pay a portion of Shell’s Indiana real estate tax or any other item of Shell’s overhead. See Mann v. Schnarr (1950), 228 Ind. 654, 667, 95 N.E.2d 138, 143.

We conclude that United is not entitled to a credit against its Illinois use tax liability under the provisions of section 3(c) of the Use Tax Act and that the failure to give such a credit does not discriminate against interstate commerce. The appellate court judgment is therefore reversed, and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.

MORAN and SIMON, JJ., took no part in the consideration or decision of this case.


author: MR. JUSTICE SIMON

text:
    (Nos. 53681, 53695 cons.
    JOSEPH VEGICH, Appellee, v. McDOUGAL HARTMANN COMPANY et al. (McDougal Hartmann Company, Appellant). — SHARON R. KAWOLSKY, Indiv. and as Adm’x, Appellee, v. McDOUGAL HARTMANN COMPANY, Appellant.

      Opinion filed March 31, 1981.

      Strodel & Kingery, Associates, of Peoria (Edward R. Durree, of counsel), for appellant.
    Ronald Hanna, of Hamm & Hanna, Ltd., of Peoria, for appellee Joseph Vegich.
    Jay H. Janssen and Jerelyn D. Maher, of Peoria, for appellee Sharon R. Kawolsky.
   MR. JUSTICE SIMON

delivered the opinion of the court:

The question McDougal Hartmann Company, the defendant in these consolidated cases, presents in its appeal is whether contributory negligence is a defense to an action brought under the statute referred to in this opinion as the Road Construction Injuries Act (Ill. Rev. Stat. 1979, ch. 121, par. 314.1 et seq.). Both cases arose from the same incident, a one-car accident in which a pickup truck driven by Frank Kawolsky, with Joseph Vegich as his passenger, smashed into a flatbed trailer parked on a section of highway closed for repairs. The cab of the pickup was sheared off; Kawolsky was killed and Vegich seriously injured.

There is no dispute as to what happened. The accident occurred at 11:45 p.m. on Route 24 in Peoria County. At that point the road was being converted to a four-lane, divided highway. The northbound lanes had already been completed and were open to two-way traffic, but the southbound lanes were still under construction and closed to traffic. Kawolsky and Vegich had been in a tavern for several hours, drinking beer. When they left the tavern, Kawolsky pulled onto the closed southbound lanes. The road surface was clean and dry. The pickup went about three blocks, then hit the trailer at about 25 miles per hour.

Both Vegich and the estate of Kawolsky brought actions against McDougal, the contractor in charge of the Route 24 repairs. The complaints alleged that McDougal had violated the Road Construction Injuries Act by failing to erect adequate barricades or signs warning motorists the road was closed for repairs. The complaint filed by the Kawolsky estate was dismissed by the circuit court of Peoria County for failing to allege that Kawolsky was free from contributory negligence. Vegich’s complaint suffered a similar fate, but was amended to allege freedom from contributory negligence. McDougal then moved for and received summary judgment on the ground that Vegich had been contributorially negligent as a matter of law. The appellate court reversed both judgments and remanded the causes. Kawolsky v. McDougal Hartmann Co. (1980), 84 Ill. App. 3d 410; Vegich v. McDougal Hartmann Co. (1980), 84 Ill. App. 3d 354. The court allowed leave to appeal in both cases.

The Road Construction Injuries Act does not mention contributory negligence but provides, in pertinent part:

“Sec. 4. Any portion of highway *** which is closed to all traffic shall be marked at each place where vehicles have accessible approach *** and at a sufficient distance from the closed portion *** shall be marked with an adequate number of safe, suitable, and proper warning signs, signals or barricades *** so as to give warning to approaching motorists that such portion of *** highway is closed and unsafe for travel.
***
Sec. 6. Any contractor *** who knowingly or wilfully violates any provision of this Act, shall be responsible for any injury to person or property occasioned by such violation, and a right of action shall accrue to any person injured for any damages sustained thereby; and in case of loss of life by reason of such violation, a right of action shall accrue to the surviving spouse of the person so killed, his or her heirs, or to any person or persons who were, before such loss of life, dependent for support on the person so killed, for a like recovery of damages sustained by reason of such loss of life.” Ill. Rev. Stat. 1979, ch. 121, pars. 314.4, 314.6.

In applying the Act to the Vegich and Kawolsky complaints, the prime inquiry is whether the legislature intended that the common law defense of contributory negligence should be permissible in an action under the Act. Examination of the wording of this and comparable Illinois safety statutes leads to the conclusion that the legislature meant to eliminate contributory negligence in actions relying upon the Road Construction Injuries Act.

When the legislature creates a cause of action by means of a safety statute making wilfullness the standard of liability, a proper construction of the statute prevents the use of contributory negligence as a defense. This is true even though the safety statute is silent on the point. For example, in Carterville Coal Co. v. Abbott (1899), 181 Ill. 495, the court, construing the coal mining safety act (Ill. Rev. Stat. 1889, ch. 93, par. 3), explained:

“To hold that the same principle as to contributory negligence should be applied in case of one who is injured in a mine because the owner, operator or manager totally disregarded the statute, as in other cases of negligence, *** would destroy the effect of the statute and in no manner regard the duty of protecting the life and safety of miners.” (181 Ill. 495, 502.)

The court also noted that the common law required that the injured miner be free from contributory negligence, but said, “This legislation fixes a broad and distinct exception from the general rule.” (181 Ill. 495, 503.) See also VonBoeckmann v. Corn Products Refining Co. (1916), 274 Ill. 605,612.

Nor is contributory negligence a permissible defense in a private action based on a violation of the Child Labor Law (Ill. Rev. Stat. 1979, ch. 48, par. 31.19). The standard of liability is wilfullness, but the statute does not mention contributory negligence. The court held in Rost v. F. H. Noble & Co. (1925), 316 Ill. 357, that contributory negligence will not defeat recovery when a child illegally employed is injured. “The defense does not apply to injuries willfully or intentionally inflicted.” 316 Ill. 357, 374.

The Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 to 69) is applied in a similar manner. That statute also makes wilful violations subject to liability, but fails to mention contributory negligence. Decisions dealing with the Structural Work Act have held that contributory negligence is not a defense. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1961), 22 Ill. 2d 305, 318.) In Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 165, the court concluded that contributory negligence had no application to the Scaffold Act (as it is sometimes called), because that act was patterned after the coal mining safety act, which did not recognize contributory negligence as a defense. The Road Construction Injuries Act is patterned after the Structural Work Act (Sinder, Chapter 121, Section 314.1 et seq.: Another Scaffold Act??? (1971), 59 Ill. Bar J. 842, 844); it is therefore proper to conclude that contributory negligence should have no application to the Road Construction Injuries Act either.

The reason for casting aside contributory negligence applies equally to all safety statutes which limit violations of the statute to wilful acts. “The object to be attained by this statute [the Structural Work Act] was to prevent injuries to persons employed in this dangerous and extra-hazardous occupation, so that negligence on their part in the manner of doing their work might not prove fatal.” (Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 164.) Thus, this type of statute is not like the common law, which determines who should bear the loss only after the accident has occurred and then only if the one at fault has acted negligently. The point of a safety statute is to prevent accidents before they occur; failing that, to compensate those injured by extrahazardous but socially useful activities. When the statutory purpose of prevention is frustrated by a wilful violation and an accident follows, the full burden of the loss must be laid on the wrongdoer, even if the victim was himself negligent. The Road Construction Injuries Act is no exception. As one commentator has put it, “[T] he dominant legislative purpose of the Construction Injury Act is to protect and fully compensate persons injured by its violation.” Sinder, Chapter 121, Section 314.1 et seq.: Another Scaffold Act??? (1971), 59 Ill. Bar J. 842, 843.

The defendant urges that the Road Construction Injuries Act is more like the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 77), which permits contributory negligence as a defense. But the Public Utilities Act, which grants a cause of action to anyone injured by a violation of the statute or the rules of the Illinois Commerce Commission, does not limit violations to wilful acts. “The essence of the statutory provision [of the Public Utilities Act] is: ‘In case any public utility shall do *** any act *** prohibited *** or shall omit to do any act *** required *** such public utility shall be liable ***.’ ” (Emphasis added.) Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 219.

In addition, Barthel notes that the defense of contributory negligence is not read into statutes which are enacted to protect a class of persons against their own inability to protect themselves. (74 Ill. 2d 213, 221.) This exclusion furthers the protections the statute offers, for the defense of contributory negligence, if permitted, would dilute and withdraw the full protection the legislature intended to give the special class. While the Public Utilities Act does not protect a special class unable to protect itself, the Road Construction Injuries Act does. In this case the Act required that warning signs and barricades be erected at the place where Route 24 was closed. It was meant to protect motorists and workers: motorists who would otherwise be ignorant of the special hazards ahead, such as rough breaks in the pavement, uncompleted bridges, or equipment parked in the right-of-way; workers who would otherwise be subject to traffic going through the middle of their work area. The Act provides for warning the motorist of special dangers ahead and protecting the workers with barricades. Because of these differences the Road Construction Injuries Act need not be applied in the same way as the Public Utilities Act.

The defendant concedes that where a safety statute is designed to protect a specific class, contributory negligence is not a defense, but urges a different rule where the statute is designed to protect the general public. The Road Construction Injuries Act protects workers and motorists, a specific class, and so falls under the grouping McDougal acknowledges is covered. In any event, the premise on which McDougal advances this argument is in error. An act which protects the general public may nevertheless exclude the defense of contributory negligence. The Structural Work Act, which protects the general public passing beneath scaffolds much like the Road Construction Injuries Act protects motorists on highways (see Ill. Rev. Stat. 1979, ch. 48, par. 60; Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679, 683), is an example.

By using the term “wilful” in the Road Construction Injuries Act, the legislature meant to create a strict liability action for which contributory negligence would be no defense. The complaint filed by Kawolsky’s estate should not have been dismissed, and summary judgment should not have been entered against Vegich.

The judgments of the appellate court are affirmed.

Judgments afjirmed.


author: MR. JUSTICE WARD

text:
    (No. 52915.
    JEROME VESTAL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Garofalo’s Finer Foods, Inc., Appellee).

      Opinion filed March 31, 1981.

      SIMON, J., took no part.
    Cohn, Lambert & Ryan, Ltd., and Edward R. Youhas, of Chicago (Pamela Karoff Kesler, of counsel), for appellant.
    Terrance J. Van Driska and Mark A. Potter, of Chicago, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Jerome Vestal, who was employed by Garofalo’s Finer Foods, said he experienced a pain in the groin area on December 17, 1976, while he was carrying a box of meat, and in June 1977 he filed a claim for benefits under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). On September 23, 1977, an arbitrator awarded him 33 3/7 weeks of temporary total disability benefits, and in addition made an award of 2% permanent disability under the “man as a whole” provision of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)(2)). The Industrial Commission, on review, affirmed as to the temporary total disability award but held that the claimant failed to prove any permanent disability. The Commission also denied Vestal’s claim for vocational rehabilitation benefits under section 8(a) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(a)). The circuit court of Cook County confirmed the denial of vocational rehabilitation benefits, confirmed the Commission’s finding for temporary disability benefits, but reinstated the arbitrator’s award for permanent disability. The claimant appealed to this court under Rule 302(a) (73 Ill. 2d R. 302(a)), asking that the judgment of the circuit court be affirmed in part and reversed in part and that the cause be remanded with directions. The claimant asks this court to direct the Commission to enter an award of vocational rehabilitation benefits, including maintenance costs and expenses. We affirm that part of the circuit court judgment which confirmed the Commission’s finding that the claimant was not entitled to vocational rehabilitation benefits, affirm its award of temporary total disability benefits, and reverse the circuit court’s setting aside of the Commission’s vacation of the arbitrator’s award for permanent disability.

The claimant was employed by the respondent as a meat cutter for approximately nine months prior to December 17, 1976, when he said he felt a pain in the groin area while carrying an 80-pound box of ham. On December 20, Vestal was examined by Dr. Dimitrios Sereleas, who examined him and apparently found no injury. The claimant has not worked since his accident. Shortly thereafter he visited Dr. Jose Songco, his personal physician, who prescribed exercises and sitz baths. The claimant testified that at first he visited Dr. Songco once a week and then twice a week for three or four months, and that the doctor prescribed weight lifting to build up his strength. He testified he was now able to lift 45 pounds. He received no medical treatments at the office of any of the doctors he consulted and was never hospitalized. Dr. A. J. Sweeney examined the claimant on behalf of the respondent on April 28, 1977, and found no objective evidence cf an inguinal problem. He stated Vestal did not have a hernia. Dr. H. C. Coblens also examined the claimant on behalf of respondent and found no evidence of a rupture and said there was no reason why Vestal could not work. Dr. G. Rabin twice conducted examinations on behalf of the claimant, and his diagnosis was that Vestal had suffered an inguinal hernia. The examinations were on April 19 and July 28, 1977. Dr. Sereleas, in a report dated April 4, 1977, found no hernia. The claimant did not return to work at Garofalo’s Finer Foods, testifying that he was told that there was no job for him as a meat cutter because of his weight-lifting restrictions. The claimant is a man of slight physique. Dr. Songco, the claimant’s personal physician, in a report dated May 19, 1977, stated in part: “I am in favor of Mr. Vestal returning to regular work. Because of the man’s weight of 112 pounds, I believe he should lift no more than 60 pounds at this time. Gradually, this amount may be increased, but we must remember that his own body size will have to have some bearing on the total weight he will be able to lift in the future.” Prior to working at Garofalo’s, the claimant was employed at the National Tea Company as a relief meat cutter for two or three months. He was employed earlier by the Kroger Co. as a meat cutter. He said that hind quarters of beef may weigh from 80 to 265 pounds. At the respondent’s store the claimant performed a wide range of duties. In his testimony he stated that as a meat cutter he was engaged in receiving meat, pricing it, cutting it, and waiting on customers, and that he also handled and sold poultry, lunch meat, ham, and fish.

At the arbitrator’s hearing on September 20, 1977, Vestal stated that the only job he had applied for since his accident was a job with the Federal government. He said that the job required college training, which he did not have. He is a high school graduate. On review before the Industrial Commission on June 27, 1978, he testified that he had sought employment from about 51 prospective employers. He testified that the Illinois Department of Vocational Rehabilitation has been helpful to him, and that through the Department he had entered Purdue - Calumet University, where he is seeking to get an associate degree in safety engineering. He is attending school 30 hours a week and is in a two-year program. He testified he had been a meat cutter for the past 25 years prior to his injury in December 1976. The claimant testified that the Department of Vocational Rehabilitation had provided him also with about $50 a week for carfare, gas, and maintenance. Tuition is paid directly to the university by the Department, which also pays for his books. The claimant testified he also receives $435 per month in Social Security disability funds.

He told the Commission that he feels pain when he lifts heavy things such as a garage door.

It is, of course, fundamental that a claimant has the burden of proving the elements of his claim and that it is the function of the Industrial Commission to determine factual questions, to judge the credibility of witnesses, and to resolve conflicts in medical evidence. Findings of the Commission will not be set aside unless they are against the manifest weight of the evidence. O’Dette v. Industrial Com. 79 Ill. 2d 249, 253.

It is clear that there was conflicting medical evidence concerning the claimant’s condition. Resolving the dispute in that evidence was for the Commission. Its finding that the claimant had not suffered permanent disability was not contrary to the manifest weight of the evidence, and we consider that the circuit court erred in setting the finding aside. The findings of the Commission that claimant was entitled to an award for total temporary disability but that he was not entitled to an award for vocational rehabilitation benefits were not contrary to the manifest weight of the evidence.

For the reasons given, the judgment of the circuit court is affirmed, save for the part that set aside the Commission’s finding that the claimant did not prove permanent disability. That part of the judgment is reversed. The award of the Industrial Commission is reinstated.

Affirmed in part and reversed in part; award reinstated.

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


author: MR. JUSTICE MORAN

text:
    (No. 53599.
    JAMES BAGLEY et al., Appellees, v. THE BOARD OF EDUCATION OF SENECA COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 170, Appellant.

      Opinion filed April 17, 1981.

      Hoffman & Mueller, of Ottawa (George Mueller, of counsel), for appellant.
    Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of La Salle County awarded plaintiffs, three tenured school teachers, base salary increases passed by the defendant, the board of education of Seneca Community Consolidated School District No. 170, for the 1975-76 academic year. The appellate court, in a two-to-one decision, affirmed, holding that classification of teachers on the basis of their signing individual contracts was arbitrary, unreasonable and capricious. 83 Ill. App. 3d 247.

There is but one question for review: Under the facts of this case, are tenured teachers who refused to sign a contract of employment entitled to the same salary as those teachers who executed such contract?

On April 29, 1975, the defendant held a board meeting. According to the minutes of that meeting, the board passed a motion “that a salary offer of $9,000 (base) be made to the teaching staff and that individual contracts be issued and that they be returned before the end of the 1974-75 school term.” On April 30, individual contracts were mailed to all teachers in the district. Each contract contained a dollar amount computed on a base salary of $9,000. A letter accompanying the contracts stated: “With this bulletin you will receive two copies of your teaching contract for next school year. Salaries are based on a new base pay schedule of $9,000 adopted by the Board of Education.” The letter also provided, “Contracts are being issued to all teachers even though it has been suggested that contracts are not necessary for teachers on tenure.”

The three plaintiffs, James Bagley, Kendra Olson, and Marcia Slaboch, all tenured teachers, declined to sign the individual contracts. On September 5, 1975, 11 days after the start of the 1975-76 school term, plaintiffs received written notice that they were to be paid according to their former base salary of $8,500. Superintendent Nolan subsequently informed them that they did not receive the $500 base salary increase because they refused to sign the contracts sent to them in the spring. On February 5, 1976, the board passed a motion “to raise the base pay for the 1975-1976 school year to $9,250.00 and to pay it retroactively in one lump sum.” At a board meeting on March 4, 1976, plaintiff Bagley asked about “the retroactive pay the Board had passed at their February meeting.” President Claggett of the school board responded that “they would receive these checks on March 15, 1976.” Plaintiffs never received the $250 amount. During the 1975-76 school year, plaintiffs performed the same duties as the tenured teachers who were given the increase in base salary.

In arguing their positions, plaintiffs and defendant cite this court’s recent opinion in Bond v. Board of Education (1980), 81 Ill. 2d 242, and the appellate court decisions in Davis v. Board of Education (1974), 19 Ill. App. 3d 644, and Littrell v. Board of Education (1977), 45 Ill. App. 3d 690. In Littrell, the school board adopted a salary schedule for the ensuing school year. On the first day of that term, the superintendent of schools distributed contracts to the teachers for their signatures. Unlike contracts prepared in previous years, the contracts contained a dollar amount according to the schedule that had been adopted by the board. The contracts did not contain a no-strike clause. At the time the teachers were given the contracts they were informed that refusal to sign would result in being paid according to the terms of the previous year’s contract. The court found that, under those facts, there was no consideration for the contract. The signing teachers were not subject to any additional obligations over those of the nonsigning teachers. The court held that the action of the board in paying the nonsigning teachers less than other tenured teachers of like experience and education for performing similar duties simply because they did not execute the written contracts was arbitrary, capricious and unreasonable. 45 Ill. App. 3d 690, 699.

In Davis, 79 days prior to commencement of the school term, the school board sent a contract to all teachers in the district, providing for an increase in salary and containing a no-strike provision. The contract thus assured the board in advance that those who signed would report for work at the commencement of the fall term (see Ill. Rev. Stat. 1975, ch. 122, par. 24 — 14) and that no work stoppage would occur during the school year. About one month later, the teachers who had not yet returned the contracts were sent a letter informing them that, if they did not sign the contract, they would be paid the previous year’s salary. This occurred more than one month prior to the start of the school year. The court held that the teachers who returned to work without signing opted not to sign and thereby received less than those tenured teachers who executed the new contract. The court concluded the salary distinction was not arbitrary, capricious or unreasonable. The court noted, parenthetically, that those who refused to sign declined to obligate themselves to the terms and conditions imposed upon those who did sign.

In Bond, 90 days before the commencement of the school year, the school board sent individual contracts to its tenured teachers. The contract allowed each teacher 10 days in which to sign, and informed them that both signers and nonsigners would retain tenure rights, that no teacher was required to sign, and that nonsigners could continue employment under the provisions of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 1 — 1 et seq.). The contract contained a no-strike clause. Each contract offered a salary increase as set forth on an attached schedule. An accompanying letter informed the teachers that nonsigners would receive the same salary as the previous year. This court first found that, under the facts of the case, the contract contained consideration. The court then held the classification between signers and nonsigners to be reasonable because the nonsigning teachers “avoided a personal commitment to a consideration which was of practical benefit to the defendant.”

The case before us differs in one significant aspect from Bond, Davis and Littrell. In all those cases, when the teachers received a contract, they were simultaneously, or shortly thereafter, notified that if they failed to sign, they would be paid the previous year’s salary. Although a reading of the opinions is not completely dispositive, it appears that, in those cases, the board made receipt of the higher salary contingent upon signing the contract. Here, however, the minutes of the April 29 meeting and the letter accompanying the contract clearly indicate that a $9,000 base salary was adopted unilaterally. The board did not condition the $9,000 salary offer upon the teachers signing the contract. According to the record, plaintiffs were not informed until September 5 that they would not receive a salary increase that was adopted for all tenured teachers.

In Richards v. Board of Education (1960), 21 Ill. 2d 104, 109, this court stated:

“[I]t is clear that a school board has discretionary control over the salaries of its teachers, subject only to any limits expressly fixed by the School Code and to constitutional prohibitions against actions that are arbitrary, discriminatory and unreasonable, or based upon an improper classification.”

In the instant case, the board adopted a new base salary that was not contingent on teachers signing a contract. Then, after returning to work, the teachers were notified for the first time that they would not receive the new base salary simply because they failed to sign the contracts. We find the action of creating a salary distinction based on a condition that was imposed subsequent to the unconditional adoption of the new base salary to be arbitrary, capricious and unreasonable.

Defendant argues that the contract provided sufficient consideration to allow the board to differentiate in salary. Even had we found that the new base salary was conditioned upon signing a contract, we would disagree with defendant’s contention. The totality of each contract consisted of the teacher’s name, the duration of the employment, the starting date, the annual salary computed on a $9,000 base, and a notation that the salary was pending final agreement with reference to the minutes of a future meeting.

This court, in Bond, after finding that a no-strike clause constituted consideration, held that a salary _distinction between signing and nonsigning teachers was not unreasonable if, by not signing, the teacher avoided a personal commitment that was of practical benefit to the school board in its planning functions. In that case, the combination of requiring that the contracts be returned well in advance of the 60-day period (Ill. Rev. Stat. 1975, ch. 122, par. 24 — 14) and the presence of a no-strike clause aided the school board in its total planning scheme and supplied the necessary consideration. The board was able to determine more than 60 days in advance of the school year which teachers would return, as well as obtain a personal commitment for continued, uninterrupted employment. Here, the salary distinction between the signing and nonsigning teachers was arbitrary, capricious and unreasonable.

For the above-stated reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE UNDERWOOD,

text:
    (No. 53305.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ARTHUR DUANE HOFFMAN, Appellee.

      Opinion filed April 17, 1981.

      SIMON, J., took no part.
    UNDERWOOD and RYAN, JJ., dissenting.
    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Melbourne A. Noel, Jr., Michael B. Weinstein, and Jonathan Strauss, Assistant Attorneys General, of Chicago, Thomas R. LaMont and Donald L. Hays, of the State’s Attorneys Appellate Service Commission, of Springfield, and Jay D. Stein, law student, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial in the circuit court of Champaign County, defendant, Arthur Duane Hoffman, was convicted of unlawful use of weapons and aggravated assault. Holding that the circuit court erred in denying defendant’s oral motion to suppress evidence, the appellate court reversed and remanded (81 Ill. App. 3d 304), and we allowed the People’s petition for leave to appeal. The facts are adequately stated in the appellate court opinion and will be repeated here only to the extent necessary to discuss the issues.

In the early morning hours of May 30, 1978, three employees of Richard’s Food Store in Champaign were taking a meal break in the store’s parking lot. They were approached by defendant, who brandished a small-caliber automatic pistol and threatened at least one of them. When the night manager emerged from the store, defendant put the gun away and ran. Police officers were dispatched to the scene and conducted a search but did not find defendant. An anonymous caller informed police that defendant could be found at 214 Paul Street in the Wilbur Heights area in Champaign. Defendant was not at that address; however, the police were directed to 306 Wilbur Heights Road. When they arrived there, they saw defendant standing in the middle of the street. Defendant ran, the police gave chase, and defendant was caught inside the house trailer in which his parents resided, located at 214 Paul Street.

Officer Paul Meeker of the Champaign police department testified that he remained outside the trailer while Champaign County Deputy Sheriff Morrison went inside. Morrison emerged with defendant in handcuffs a few minutes later. Officer Meeker accompanied defendant to the place where he was first seen, and defendant showed him where to find a .25-caliber automatic pistol.

At the conclusion of Officer Meeker’s testimony, defendant’s counsel orally moved to “suppress” his testimony and the pistol to which he was led by defendant for the reason that there was “no testimony to establish the defendant was ever advised of his Miranda rights.” The circuit court held a suppression hearing at which the only witness called was Della Hoffman, defendant’s mother. She testified that defendant arrived at her trailer on foot and that “five or six” police officers entered after him. Defendant was drunk. When asked what was said to her son by the officers who pursued him, Mrs. Hoffman said:

“Asked him where the gun was. Felt over him and he came in, he just kind of fell in a chair and his head against the wall and kind of leaned over the table with his arms hanging down ***.”

Concerning her participation in the questioning, she said: “I just, I told him if he knew, to tell them where it was at.” Defendant’s father also told him to tell the officers where the gun was. Mrs. Hoffman testified that she did not hear the police warn defendant either that he had a right to remain silent or a right to an attorney. At the conclusion of this testimony, defendant’s trial counsel stated that Mrs. Hoffman’s testimony was not what she had anticipated it would be and that there would be no argument made on the motion to suppress. Later, defendant’s counsel moved to reopen the hearing in order to permit Mrs. Hoffman to testify that defendant was arrested while in the trailer. Both that motion and the motion to suppress were denied. The only evidence offered on behalf of defendant was the testimony of his sister that at the time the offense was committed defendant was drunk and riding with her in her car.

Initially, the People contend that “[t]he trial court does not have discretion to entertain a motion to suppress made during trial.” In People v. Flatt (1980), 82 Ill. 2d 250, 262, we addressed the question of when a motion to suppress evidence may be entertained by a trial court:

“At common law, a claim that evidence was obtained by means of an illegal search and seizure had to be raised before trial by means of a motion to suppress or to return the evidence. This requirement arose from a consideration of judicial economy; the court should not be required to interrupt a trial in order to determine the collateral issue of the manner in which the evidence was obtained. (People v. Braden (1966), 34 Ill. 2d 516, 520; People v. Dalpe (1939), 371 Ill. 607, 611; People v. Drury (1929), 335 Ill. 539, 557; People v. Brocamp (1923), 307 Ill. 448, 454.) (See 23A C.J.S. Criminal Law sec. 1060, at 11 (1961).) By virtue of section 114 — 12(c) (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 12(c)), the common law rule was relaxed; the court may, in its discretion, conduct a hearing on a motion to suppress even though the motion is filed after trial has begun, providing that it is alleged that the evidence was illegally seized. Thus, the prohibition against filing a motion to suppress during trial has been relaxed so as not to prevail over the constitutional right to be free from unreasonable searches and seizures.”

In our opinion it is also within the discretion of a trial court to entertain a motion to suppress evidence made after trial has begun based on a violation of the principles announced in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. As the Supreme Court said in Miranda:

“The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.” (384 U.S. 436, 476, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629.)

To hold that the circuit court was without discretion to hear an untimely motion to suppress in these circumstances would jeopardize the integrity of the constitutional principles upon which Miranda rests. The circuit court did not abuse its discretion in hearing defendant’s motion to suppress.

The People also contend that “[b] efore the People had an opportunity to present evidence in opposition to defendant’s motion to suppress, defendant in effect withdrew his motion. This withdrawal should have precluded the Appellate Court from adjudicating the issue of whether Miranda warnings were given to the defendant.”

At the conclusion of Officer Meeker’s testimony defendant’s trial counsel argued in support of her oral motion to suppress that it was obvious from Officer Meeker’s testimony that defendant had been arrested while he was inside the trailer and that the People had offered no testimony proving compliance with the requirements of Miranda. The People had not rested their case, and the court proceeded with the hearing on defendant’s motion to suppress. The testimony of Mrs. Hoffman, defendant’s mother, was taken at this time. That counsel chose to make no further argument following Mrs. Hoffman’s testimony did not, in our opinion, effect a withdrawal of the motion to suppress. Once raised, the issue became one which the People were required to meet. As the Supreme Court said in Miranda: “ [T] he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” (384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612; see also People v. Morgan (1977), 69 Ill. 2d 200, 208; People v. Roy (1971), 49 Ill. 2d 113, 116.) We hold that defendant sufficiently raised the matter of the People’s compliance with the dictates of Miranda.

We consider next the People’s contention that the circuit court correctly denied defendant’s motion to suppress. In support of this contention the People argue that at the time he was questioned about the location of the gun defendant was not in custody or deprived of his freedom of action in any significant way. Thus, the People argue, no Miranda warnings were required. In our opinion the circumstances surrounding defendant’s statements regarding the location of the gun necessitate the conclusion that he was in custody at the time they were made. Officer Meeker testified that defendant was arrested inside the trailer and was in handcuffs when he emerged. Mrs. Hoffman testified that defendant was followed into the trailer by five or six police officers and patted down for weapons. As did the appellate court, we conclude as a matter of law that defendant was in custody at the time of his questioning. See People v. Wipfler (1977), 68 Ill. 2d 158, 168-70, and cases cited therein.

The People do not contend that defendant was in fact given Miranda warnings at any time prior to showing the police officer where the pistol was to be found. It is clear from the language of Miranda that the procedures therein delineated were not meant to proscribe “[g] eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.” (384 U.S. 436, 477, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629.) They were designed to advise an individual of his rights while being questioned in the compelling atmosphere which distinguishes a custodial interrogation from a general inquiry. The line between “general investigation” and “custodial interrogation” is incapable of precise demarcation, and it becomes necessary to decide each case on its own particular facts. The only case which has come to our attention which presents a substantially similar state of facts is United States v. Ganter (7th Cir. 1970), 436 F.2d 364. In that case a Federal Bureau of Investigation agent, while conducting an investigation, was disarmed by an unknown assailant. The assailant then fled with the agent’s gun. An anonymous informant told authorities that the assailant could be found at a certain address, and when they arrived there they found fresh blood drippings outside that address. After knocking and receiving no response the police kicked in the door and found the assailant facing them. He was placed under arrest and given Miranda warnings. When asked to reveal the location of the gun, he responded by telling the officers it was under a couch. At trial a motion to suppress was filed alleging that the gun was the fruit of an illegal interrogation. The defendant contended both that the warning given did not comport with the requirements of Miranda and that the government had not met its burden of showing a knowing and intelligent waiver of defendant’s rights prior to his statement. In holding that the questioning about the location of the gun was not interrogation, the Seventh Circuit Court of Appeals said:

“In the case before us we do not have any of the factors which brought about the Miranda doctrine. Within minutes after Canter was given the Miranda warning, other police officers appeared at the front door of the apartment and the only interrogation that occurred was that Canter was asked where the gun was. *** Within minutes after the gun was located Canter was taken from the apartment and apparently no further interrogation occurred.
We do not conceive that the Supreme Court decisions which have been hammered out in cases such as Miranda, in the interest of shaping and preserving basic constitutional rights and privileges, should be construed as being intended to pamper or indulge those whose conduct has run afoul of the legitimate public interest of an ordered society as expressed in our criminal statutes.
In holding that no constitutional rights of Ganter were violated at this juncture, we do so on the narrow basis of the facts here involved. The police were in pursuit of a man justifiably believed to be armed and, in view of his threats to a person who had been identified to him as a peace officer, justifiably believed to be dangerous. Blood had been shed. Even the meekest of law violators are known to the police to commit violent acts when cornered. The event of confrontation in the apartment took place in fleeting moments during which the officers nevertheless still gave Miranda warnings but during which there must have been supreme awareness on their part that a strong likelihood existed that a quick movement on the part of Ganter could result in his being "armed with a lethal weapon with which he might very well attempt to gain his freedom.
We do not conceive that under these circumstances the natural inquiry as to the location of the gun constituted Miranda proscribed interrogation and we so hold.
We believe as stated by the Supreme Court in Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629,
‘our decision is not intended to hamper the traditional function of police officers in investigating crime.’ A contrary result to that which we have here reached would perforce, in our opinion, have a substantially hampering effect.” 436 F.2d 364, 370.

Here the police officers pursuing defendant were justified in believing that he was armed and perhaps dangerous. In order to arrest defendant it was necessary for the officers to enter the close confines of a trailer and there confront two additional persons — defendant’s parents — of unknown disposition. Had the pistol been found in the trailer we would hold, as did the court of appeals in Ganter, that the natural inquiry as to the location of the gun did not constitute Miranda proscribed interrogation. Here, however, defendant was taken into custody inside the trailer and while in custody and handcuffed led the officers to the pistol. In contrast to Ganter, where the pistol was apparently found immediately, the pistol here was located after a time interval, the length of which is not shown by this record. Compliance with Miranda would require that, as soon as it could be determined that defendant was not armed, he be given Miranda warnings. We agree with the appellate court that the act of leading the officer to the place where the pistol was found was conduct of a testimonial nature and, in the absence of Miranda warnings, testimony concerning that fact should have been suppressed.

The People contend that even assuming that defendant’s leading them to the pistol was the result of their failure to give the Miranda warnings the police would have inevitably discovered it and the motion to suppress was therefore properly denied. The record does not show the distance from the place where defendant was arrested to the point where the pistol was found or the period of time which had elapsed from the time that police first saw defendant and the time when they returned to find the pistol. Furthermore, it does not appear from the record whether the pistol was concealed or whether it was found lying on the street or sidewalk. Under the circumstances we find no basis in the record to hold that it was inevitable that the pistol would be found by the police.

Finally the State contends that if this court were to determine that on this record the evidence should be suppressed, the proper disposition would be to remand in order to give the People an opportunity to supplement the record. The People argue that during the suppression hearing they were prepared to call Deputy Morrison and, if necessary, the defendant’s father, both of whom were present in the trailer when Miranda warnings may have been given. They argue further that the only reason that the witnesses were not called was that the defendant did not persist in his suppression motion in the circuit court and the court, in denying the motion, saw no reason for the People to go forward with superfluous evidence.

As noted by the appellate court, the record of what occurred in the trailer is incomplete. It would appear that the People should appropriately be given an opportunity to adduce such testimony as may be available to prove that defendant was given Miranda warnings prior to making any statement or engaging in conduct of a testimonial nature. The judgments of the appellate and circuit courts will therefore be vacated and the cause remanded to the circuit court of Champaign County with directions to conduct a hearing on the question whether appropriate Miranda warnings were given and voluntarily and intelligently waived prior to the time that defendant led the police officer to the place where the gun was found. If no such warnings were given or if defendant’s rights were not knowingly and intelligently waived, the circuit court is to grant defendant a new trial. In the event the circuit court finds that such warnings were given and a knowing and intelligent waiver of such warnings made, a new judgment of conviction should be entered.

Judgments vacated; cause remanded, with directions.

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

MR. JUSTICE UNDERWOOD,

dissenting:

I agree that it was within the trial judge’s discretion to entertain the motion to suppress even though defense counsel offered no explanation for the failure to present the motion prior to trial, as should have been done (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 11(a)). I do not agree that the defendant may now complain of the court’s denial of that motion. When the court indicated a willingness to entertain the motion to suppress, defense counsel called only one witness — defendant’s mother. At the conclusion of her testimony, defendant rested, and the prosecution made a two-sentence statement pointing out that the defendant had not met his burden and emphasizing that defendant’s statement had been prompted by his parents’ urgings. Defense counsel then stated: “Judge, that isn’t what the testimony I anticipated that witness was going to testify to so I have no argument on it.” While that statement may not have been the equivalent of withdrawal of the motion, defense counsel certainly seemed to be acquiescing in the prosecutor’s position. Clearly, counsel’s statement indicated her belief that the motion should be denied. Having led the court into what my colleagues now categorize as error, defendant should not be allowed to profit from it. People v. Van De Rostyne (1976), 63 Ill. 2d 364, 370.

There is an additional reason why defendant’s conviction should be affirmed. There exists, in my judgment, not the slightest doubt that the defendant is the individual who threatened the complainants with a gun. Even if that gun, the evidence of where it lay, and the testimony that defendant led the officers to it are all suppressed as the appellate court held they should be, it is, to me, well-nigh incredible that a jury could reach a verdict other than guilty. Three eyewitnesses positively identified defendant. He did not testify, and his only defense was his sister’s testimony that she and defendant, who was drunk, had been at her home and were riding around in her car between 1 and 2 a.m. when the offense was committed. The error, if such it was, in denying the motion to suppress was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Spicer (1979), 79 Ill. 2d 173, 183.

I would reverse the appellate court and affirm the judgment of the circuit court.

MR. JUSTICE RYAN joins in this dissent.