text:
    (No. 49213.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROBERT WILLS, Appellee.

      Opinion filed March 23, 1978.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Assistant Attorney General, of Chicago, and Lee T. Hettinger and Michael E. Shabat, Assistant State’s Attorneys, of counsel), for the People.
    Sherman C. Magidson, of Chicago (Carl P. Clavelli, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the

court:

The defendant, Robert Wills, was indicted for perjury alleged to have been committed during his testimony before a Cook County grand jury investigating improprieties in the licensing practices of the Illinois Department of Insurance (Department). Following a bench trial, the defendant was convicted and sentenced to four years of probation, with the first six months to be served in a work-release program. The appellate court reversed the conviction, reasoning that either the defendant’s answers were literally true or the questions posed to him were too confusing and ambiguous to serve as a basis for a perjury conviction. (44 Ill. App. 3d 585.) We granted the State’s petition for leave to appeal.

The defendant was employed as an insurance examiner with the Department from June 1969 until his dismissal on March 2, 1973. Shortly after his dismissal, the defendant telephoned his friend, Gordon Casper, who was head of the Department’s examining unit, and asked to speak with him regarding the insurance broker’s examination of William Daley. (Casper had supervised that examination, conducted in Chicago on Friday, March 16, 1973, and had taken the examination papers back to his home in Springfield for the weekend.) Casper acknowledged that Daley had taken the March 16 examination, and agreed to discuss the same with the defendant. Upon defendant’s arrival at Casper’s home, Casper permitted him to peruse the Daley examination, after which defendant noted that there were “too many vacancies, too many unanswered questions” on it. He asked Casper if he could fill in some answers as a favor to a State senator and Casper agreed. The defendant spent between 20 and 35 minutes doing so. Casper then returned the paper to the batch of ungraded examinations. During the week, the examinations were graded. Casper graded the Daley examination and gave it a passing score. The grade was recorded, and Daley was subsequently notified that he was eligible for an insurance broker’s license.

Approximately a year later, both Casper and the defendant received subpoenas to testify before the grand jury on Wednesday, March 20, 1974. Defendant and Casper met in Springfield on the Saturday before the grand jury session. Defendant told Casper that he had again spoken to the senator and that they should “play it cool like [they] had before.” Casper agreed. During their flight to Chicago, the two agreed to “stick to [their] story.”

When the defendant appeared before the grand jury, he was advised of his right to remain silent and that anything he might say could be used against him in a court of law. He was also advised of his right to confer with an attorney in the anteroom. (In accordance with statute, counsel was not permitted to accompany the defendant into the session. Ill. Rev. Stat. 1973, ch. 38, par. 112—6(a).) The defendant’s testimony, which is the subject of the peijury charge, proceeded as follows.

The defendant answered that he had had occasion to grade insurance examinations while he was with the Department. He acknowledged that he and two other employees had graded examinations taken on December 13, 1971. He was shown an examination written by a John Daley on that date, and, noting his own handwriting in the margins, admitted that he had graded that particular examination. Defendant then responded to a series of questions dealing with applications for examinations, testifying that he had nothing to do with applications and that applications were processed in a department other than that in which he was employed. These questions and answers followed:

“Q. Has anyone there ever offered you anything of value for grading an examination favorable to them?
A. Never.
Q. Have you ever received anything for grading an examine [szc] for someone?
A. Never. Never. Nothing, no.
Q. In your course of employment with the insurance department have you ever encountered such offers to other graders?
A. Repeat your question please?
Q. While you were working for the department of insurance did you ever become aware of any offers to others?
A. I have heard of it yes.
Q. Who? What examiner?
A. Well I have been offered myself. This was very common. Anyone that has anything to do with a license this is very common to anybody.
O. Wait a second; you said that you were never offered anything of value?
A. Oh I am sorry I misunderstood you. I thought you said did you ever take anything of value.
Q. Okay. People did offer you money?
A. I have had an offer, yes.
Q. Do you recall who?
A. I wouldn’t know who they were. I made it appear as if I were insulted for you offering me to take the money.
Q. How many times did this happen?
A. Well actually say a half a dozen times; I wouldn’t know really the number.
Q. Did you ever change anyone’s answer on an examination?
A. Never.
Q. Did you ever cross out words that someone had written on an exam ?
A. No.
Q. Have you ever written in answers for someone?
A. Never.”

(The italicized questions and answers were the basis of the peijury conviction.)

The defendant’s attention was then again directed toward the December 13, 1971, examination of John Daley.

On May 10, 1974, Casper received another grand jury subpoena. He telephoned the defendant and informed him of the subpoena. They met the following evening at the defendant’s home, at which time Casper told the defendant that, upon the advice of counsel, he was going to tell the truth. The defendant replied that he would not “change his story.” On May 16, 1974, Casper, under a grant of immunity, detailed what had happened for the grand jury.

At the defendant’s trial on the perjury indictment, the State elicited testimony from Casper, and from two handwriting experts, which established beyond a reasonable doubt that the defendant had written in answers to questions 1—B, 13, 29—B, 37, 42, 44—A, and 46 on the March 16, 1973, examination of William Daley. The defendant was not implicated in any way in misconduct relating to the December 13, 1971, examination of John Daley. The State introduced into evidence the transcript of the defendant’s grand jury testimony. The defendant offered no testimony, but introduced into evidence the transcript of Casper’s grand jury testimony on March 20, 1974, and the original indictment charging the defendant with three counts of perjury. The original indictment, filed on May 2, 1974, alleged that the defendant had committed perjury when asked questions “pertaining to his function in grading insurance examinations for the Illinois Department of Insurance.” A new indictment, filed June 6, 1974, deleted the above-quoted clause and substituted in its stead, “pertaining to the intentional unauthorized alteration of insurance examination answers on Insurance Broker’s Examinations given by the Illinois Department of Insurance.”

It is the defendant’s contention that the prosecutor’s questions were ambiguous and confusing, and that defendant’s answers were literally true, in that, while he was employed by the Department, he had not “change [d] anyone’s answer,” “cross [ed] out words,” or “written in answers” on any examination. The contention is founded on the fact that the defendant’s employment with the Department had terminated 16 days prior to the date on which he had altered William Daley’s examination.

A person commits perjury when, “under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.” (Ill. Rev. Stat. 1975, ch. 38, par. 32—2(a).) Casper’s testimony recounting the sequence of events both before and after the defendant’s grand jury appearance provides sufficient circumstantial proof of the defendant’s intention to withhold information which was within his personal knowledge. If the only question was whether the defendant was predisposed to lie before the grand jury, we would not hesitate to affirm the conviction in deference to the trial judge’s appraisal of the weight and credibility of the testimony. However, the defendant’s predisposition is not the issue.

The issue, simply stated, though not so easily resolved, is whether it can be concluded beyond a reasonable doubt that the defendant made a false statement. To determine this, we must rely upon the transcript of the grand jury session itself. In this regard, the trial judge was in no better position than we to interpret the defendant’s grand jury testimony.

In Bronston v. United States (1973), 409 U.S. 352, 34 L. Ed. 2d 568, 93 S. Ct. 595, the Supreme Court held that a perjury conviction cannot be sustained if the answers, though not responsive to the questions posed, are literally true. There, the colloquy read:

“Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
A. No, sir.
Q. Have you ever?
A. The company had an account there for about six months, in Zurich.
Q. Have you any nominees who have bank accounts in Swiss banks?
A. No, sir.
Q. Have you ever?
A. No, sir.” (409 U.S. 352, 354, 34 L. Ed. 2d 568, 571, 93 S. Ct. 595, 598.)

Evidence established that the defendant also had had a Swiss bank account, but that he did not have the account on the date he was questioned.

In the case at bar, both the responsiveness and the truthfulness of the defendant’s answers depend upon whether the questions could have reasonably related to two critically different time frames. The State contends that because the prosecutor’s questions incorporated the term “ever,” their time frame was all encompassing and not limited to the defendant’s period of employment with the Department. Certainly, when the questions are isolated, the time frame appears all encompassing. However, an examination of the immediate context in which the questions were asked reveals that the defendant could have reasonably interpreted the time frame of the question to be circumscribed by his employment with the Department.

We note at the outset that the questions and answers at issue must be interpreted in the context of what immediately preceded and succeeded them. “ ‘A charge of perjury may not be sustained by the device of lifting a statement of the accused out of its immediate context *** thus giving it a meaning wholly different than that which its context clearly shows.’” (Van Liew v. United States (5th Cir. 1963), 321 F.2d 674, 678; Fotie v. United States (8th Cir. 1943), 137 F.2d 831, 842.) We recognize that almost any question can be interpreted in several ways when subjected to careful scrutiny after the fact. We also recognize, however, that, at the time of an interrogation, a questioner may not be aware of facts or time frames which, known to the witness, may create an ambiguity in questions posed. It is not, however, the responsibility of a witness, as the State suggests, to clarify or attempt to clarify questions which might tend to implicate him. “The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry.” Bronston v. United States (1973), 409 U.S. 352, 360, 34 L. Ed. 2d 568, 575, 93 S. Ct. 595, 601; People v. White (1974), 59 Ill. 2d 416, 421.

In People v. White (1974), 59 Ill. 2d 416, 420-21, it was held that a defendant cannot be convicted of perjury “for a truthful answer to a question subject to various interpretations. *** The questions must be stated in such a precise way as not to require interpretation or construction by those who are required to answer them under oath.” The White court reversed a conviction for perjury, finding that a question on a liquor license application form could reasonably be interpreted to either include or exclude the defendant. The benchmark is whether the words involved, read in their immediate context, are susceptible to a reasonable interpretation other than that intended by the questioner, and whether the witness’ answer truthfully responds to his reasonable interpretation of the words.

In the case at bar, the defendant was asked, “While you were working for the department of insurance did you ever become aware of any offers to others?” (Emphasis added.) The defendant answered that he was aware of such offers, that he himself was offered money in exchange for grading examinations favorably, and that he could not recall who made such offers or how many times such offers were made. Immediately thereafter, the prosecutor asked whether defendant had in fact tampered with answers on an examination. It is reasonable for the defendant to have assumed that those questions referred only to the limited time frame established by the prosecutor’s previous questions. Particularly because the prosecutor did not know at the time of the questioning that the defendant’s involvements occurred after he left the employ of the Department, there is no reason to assume that the prosecutor intentionally broadened the scope of the questions or, more importantly, that he conveyed a broader scope to the defendant. It is of no consequence that the defendant’s answers were unequivocally “Never” and “No.” If the defendant could reasonably have interpreted the questions to refer to his period of employment with the Department, as we so hold, then his unequivocal answers were both responsive and truthful.

The State argues that even if the defendant had answered, “No, I never tampered with exams while I was employed with the Department of Insurance,” his answers would nonetheless have been peijurious. The State cites United States v. Nickels (7th Cir. 1974), 502 F.2d 1173, for this assertion. In Nickels, a grand jury asked the defendant whether he had received any money from any persons while on official duty as a Chicago policeman. The officer responded, “No, sir, not for my duties.” (502 F.2d 1173, 1178.) The court, in affirming the perjury conviction, noted that the initial response, “No, sir,” was directly responsive and false and that the attempted hedge, “not for my duties,” was nonresponsive and therefore irrelevant. (502 F.2d 1177, 1178.) Here, the flaw in the State’s analogy is that had the defendant appended to his answers that he never tampered with exams “while *** employed with the Department of Insurance,” the answers would have been both true and responsive in light of the circumscribed time frame previously established by the prosecutor.

A testimonial ambiguity similar to the one at bar resulted in the reversal of a perjury conviction in Van Liew v. United States (5th Cir. 1963), 321 F.2d 674. In Van Liew, the defendant was alleged to have committed peijury when he testified at an injunction hearing regarding the economic adulteration and misbranding of an orange drink. The perjury indictment charged that the defendant falsely testified as follows:

“Q. In the running of this operation or processing is there any way or any means by which water can be introduced into the product?
A. Not to my knowledge.” (321 F.2d 674, 677 n.6.)

The government argued that the defendant’s answer was literally untrue and that it was made in response to a question encompassing the entire production process. The defendant contended that the context only related to the pasteurization portion of the process and that his answer was not therefore false. The court agreed with the defendant, stating:

“When read in light of the surrounding testimony, one of two things is clear. The first is that we think the Defendant’s answer obviously referred to the pasteurization process alone. [Footnote omitted.] But second, if this is not so as an established fact, the uncertainties as to what the interrogator thought, or what the swearer thought the interrogator thought by the words ‘operation or processing’ are such that neither we nor a jury could hold that knowing falsification was proved beyond a reasonable doubt.” 321 F.2d 674, 678-79.

A grand jury is “a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” (Blair v. United States (1919), 250 U.S. 273, 282, 63 L. Ed. 979, 983, 39 S. Ct. 468, 471.) A grand jury witness need not be informed of the subject matter of the inquiry or of the names of persons about whom he is to testify. A grand jury witness has no opportunity to clarify his answers through redirect examination conducted by his attorney. It is precisely because a grand jury inquest facilitates such broad, nonadversarial inquiry that we place the burden on the prosecutor to establish without ambiguity the temporal frame of reference for his questions.

We have ascertained that when the defendant appeared before the grand jury, he was not informed of the nature or scope of the grand jury investigation; the broad scope of the prosecutor’s inquiry related to the defendant’s role as a grader óf insurance examinations; the narrower inquiry concentrated specifically on the December 13, 1971, examination of John Daley, which the defendant had graded; and both areas of inquiry presumed that the defendant was employed with the Department in a position to grade insurance examinations. Additionally, two related factors support our conclusion that the questions could have reasonably been interpreted by defendant to refer to the period of his employment.

During the entire grand jury session, no question was directed to a time frame after the defendant’s employment with the Department. No question was directed, specifically or by reference, toward the March 16, 1973, examination of William Daley. There is no indication in the grand jury transcript that the prosecutors had any interest in the defendant’s activities outside his employment with the Department.

The second related factor is that the original indictment itself, drawn by the prosecutor and voted upon by the grand jury, specified in each of its three counts that the understood time frame was the period of defendant’s employment with the Department. Each of the counts charged that the defendant answered perjuriously when asked questions “pertaining to his function in grading insurance examinations for the Illinois Department of Insurance.” It was not until after Gasper’s second appearance before the grand jury that the wording of the new indictment attempted to encompass a broader time frame.

For the foregoing reasons, we affirm the judgment of the appellate court.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 49808.

      In re RONALD BROWN, a Minor, Appellee.-(The People of the State of Illinois, Appellant.)

      Opinion filed March 23, 1978.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Assistant Attorney General, of Chicago, and Lee T. Hettinger, Myra J. Brown, and James B. Davidson, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (John Thomas Moran and James B. Haddad, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

In a petition for adjudication of wardship filed by the People in the juvenile division of the Cook County circuit court Ronald Brown was charged with aggravated battery in that he “shot a shotgun” at Anthony Calloway, thereby injuring him. The trial judge adjudged Brown delinquent and committed him to the Illinois Department of Corrections. The appellate court reversed (49 Ill. App. 3d 580), finding that the People did not prove that Brown committed the offense prior to his 17 th birthday as required by the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 701—1 et seq.), and that he was not proved guilty beyond a reasonable doubt. We agree that the proof does not establish guilt beyond a reasonable doubt.

Ón February 27, 1975, a hearing was held on Brown’s motion to suppress evidence due to the alleged illegality of his arrest. Several witnesses testified before Judge Costa, including Brown himself, who stated that he was 15 years old. After hearing the testimony of these witnesses and the arguments of counsel, Judge Costa denied the motion and immediately asked counsel to proceed with the case in chief.

The People called only two witnesses, the first of whom was Anthony Calloway, the victim of the aggravated battery. Calloway testified that in the early evening hours of December 10, 1974, he was sewing in Brainard Field House in Chicago, Illinois, when a door came open. As he stood up from the table, a shotgun was fired from the doorway, hitting him in the upper thigh and resulting in a wound so severe that a leg was amputated a few weeks later. Calloway testified that he did not see who shot him. Although he stated that four others were in the field house that day, all engaged in activities nearby, none of them testified at the adjudicatory hearing. Calloway also testified on cross-examination that, prior to the incident, he had no contacts with the accused. He knew Brown only by face recognition and not by name.

The sole identifying witness, Leroy Williams, testified that he saw Brown carrying a sawed-off shotgun in a park near the field house at approximately 5:30 or 5:45 p.m. on the date of the shooting incident. According to Williams, Brown told him that he was going to “off a stud,” meaning “kill a guy,” and proceeded in the direction of the field house. Williams saw Brown walk to the front of the field house, where Brown met another person whom Williams did not identify. The other person opened the field house door and Brown fired a shot. Williams did not actually see the shotgun blast, but did see Brown fire it. Then Brown and the other person ran in different directions. Williams stated that he did not lose sight of Brown from the time he saw him with the shotgun until he ran from the scene of the crime. On cross-examination, Williams stated that he himself had been arrested for the shooting later that evening. That night Williams told police it was Ronald Brown who shot into the field house and that he knew this because he had seen Brown do it. Williams also admitted an earlier statement in which he said that it could have been either Brown or the unidentified person who fired the gun. On redirect examination, Williams stated that all charges against him relating to this incident had been dropped and that he was not testifying pursuant to any promise made by the office of the State’s Attorney.

The defense presented three alibi witnesses, including Brown’s girl friend, who testified that the accused had been playing cards and listening to records with them at the time of the shooting. Defense counsel also called two police officers who stated that during questioning Williams admitted being with the person who shot Anthony Calloway, although just what Williams meant by “being with” the person remained unclear.

The appellate court held that the trial judge could not find Brown delinquent under the Juvenile Court Act because there was insufficient proof to sustain a finding that Brown was under 17 at the time of the offense. We disagree as to the sufficiency of the proof. As noted earlier, on the trial date the court first heard a motion to suppress. In support of this motion Brown testified that he was 15 years old. Immediately following the court’s denial of the motion, the same judge proceeded with the adjudicatory hearing.

Other than a pro forma blanket denial of the allegations of the delinquency petition contained in the answer thereto, it is not disputed that Ronald Brown was 15 years of age at the time of the hearing. The petition alleged his birth date was April 3, 1959, which would have made him 15 years old at the time of the February 1975 hearing. He, himself, testified in the same case, on the same day before the same judge, that he was 15 years old. The contention that because the proof of age occurred at a different stage of the proceedings, only minutes or at most an hour or two earlier, the judge who heard that testimony cannot consider it in deciding the case is, in our opinion, without merit. Clearly, a court may and should take judicial notice of other proceedings in the same case which is before it and the facts established therein. People v. Davis (1976), 65 Ill. 2d 157, 161; City of East St. Louis v. Touchette (1958), 14 Ill. 2d 243, 249; State Farm Mutual Automobile Insurance Co. v. Grebner (1971), 132 Ill. App. 2d 234, 237; Nogle v. Nogle (1964), 53 Ill. App. 2d 457, 459.

We agree with the appellate court, however, that Brown was not proved guilty of aggravated battery beyond a reasonable doubt. The identification of F awn as the assailant is based solely on the uncorroborated testimony of Leroy Williams, who himself had originally been charged with the crime. Having exonerated himself by condemning Brown, Williams is in a position similar to that of an accomplice whose uncorroborated testimony must be viewed with caution. (People v. Wilson (1977), 66 Ill. 2d 346.) Although such testimony may be the basis for a conviction, we cannot say the burden of proof beyond a reasonable doubt was met here.

Williams’ testimony at trial sometimes varied from his prior statements. Although several other people were nearby, none testified to corroborate his at-trial identification of Brown as the assailant. Nor did the prosecution introduce any physical evidence which would have supported Williams’ testimony, such as Brown’s clothing, which had been described by Williams at trial, or the sawed-off shotgun. Williams’ claim that Brown, who had theretofore said nothing beyond “hello” to Williams, told him while passing in the park that he was going to kill someone seems improbable. We also note that the alibi witnesses presented by the defense were consistent in their testimony.

After reviewing the entire record, we agree that Brown’s guilt was not proved beyond a reasonable doubt and that the adjudication of delinquency cannot stand.

The judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 49731.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICHAEL DuMONTELLE, Appellant.

      Opinion filed March 23, 1978.

      Ralph Ruebner, Deputy Defender, and Kathy M. Morris, Assistant Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield, and L. Patrick Power, State’s Attorney, of Kankakee (Donald B. Mackay and Melbourne A. Noel, Assistant Attorneys General, of Chicago, and James E. Hinterlong and Linda M. Yodar, of the Illinois State’s Attorneys Association Prosecutors’ Appellate Service, of Ottawa), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The defendant, Michael DuMontelle, pleaded guilty to the charge of possession of cannabis, in violation of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56½, par. 704(c)) (hereinafter cited as the Act). The circuit court of Kankakee County placed him on probation as provided in section 10 of the Act (Ill. Rev. Stat. 1973, ch. 56½, par. 710). The court also fined the defendant $65 and assessed court costs against him in the amount of $25. The defendant appealed, arguing that section 10 of the Act does not authorize the imposition of a fine or the assessment of court costs. The appellate court affirmed with one justice dissenting. (49 Ill. App. 3d 187.) We granted leave to appeal.

Two closely related questions are presented for review. First, we are asked to decide whether the general sentencing provisions of section 5—5—3 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005—5—3) may be applied to a defendant who has been placed on probation pursuant to section 10 of the Act. Similarly, we must decide whether a section 10 probationer may be required to pay court costs, as provided in the criminal costs statute (Ill. Rev. Stat. 1973, ch. 38, par. 180—3). We will first consider whether a fine was properly imposed against the defendant under the circumstances of his case.

The basic sentencing provision of the Unified Code of Corrections is found in section 5—5—3. That section provides: “Every person convicted of an offense shall be sentenced as provided in this Section ***.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005—5—3(a).) The term “conviction” includes “a judgment of conviction or sentence entered upon a plea of guilty ***.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005—1—5.) Section 5— 5—3(d)(1) specifically authorizes a court to impose probation upon those defendants convicted of a felony or misdemeanor, and section 5—6—3(b)(2) (Ill. Rev. Stat. 1973, ch. 38, par. 1005—6—3(b)(2)) authorizes the imposition of a fine as one of the numerous terms upon which probation may be conditioned. Whether these sentencing provisions of the Unified Code of Corrections may be properly applied to a defendant who has been placed on probation pursuant to section 10 of the Act can only be ascertained by examining both the precise language of the statute as well as the legislative intent underlying the spirit and purpose of the Act itself.

Section 10 of the Act, often appropriately referred to as the “first offender” provision, provides for the lenient treatment of a defined class of first-time marijuana offenders. As set forth in the section, “[w] henever any person who has not previously been convicted of any offense under [the] Act” pleads or is otherwise found guilty, “the court may, without entering a judgment of guilt ***, defer further proceedings and place him on probation upon reasonable terms and conditions as it may require.” (Ill. Rev. Stat. 1973, ch. 56½, par. 710.) The section further provides for discharge and dismissal of the defendant upon his successful completion of the terms imposed by the court, and also allows the court to “enter an adjudication of guilty and proceed as otherwise provided” if the defendant fails to fulfill the probationary conditions. (Ill. Rev. Stat. 1973, ch. 56½, par. 710.) Finally, and most importantly, the section declares:

“Discharge and dismissal under this Section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime ***.” Ill. Rev. Stat. 1973, ch. 56½, par. 710.

It is important to note that under the provisions of section 10, following the factual determination of guilt, no judgment of guilt as to the offense charged can be entered, but further proceedings are deferred during the period of probation. If the offender successfully completes his probation, the charge is dismissed and the offender discharged. In such a case, no adjudication of guilt of the offense charged can be made and there can be no conviction of the charge. It is only in cases of failure to successfully complete the probation that the court may, under section 10, adjudge the offender guilty and enter a judgment of conviction.

There are serious obstacles in attempting to apply the general sentencing provisions of the Unified Code of Corrections to the first-offender provision of the Act. It is difficult to circumvent the clear import of the statutory language, in particular that portion quoted above, which declares that treatment under the first-offender statute does not amount to a conviction. Since this is true, neither section 5—5—3 nor its accompanying provisions govern section 10 treatment because, as we have noted, a conviction is a necessary prerequisite to their application. Any other conclusion is not only contrary to the inescapable meaning of the statutory language, but also emasculates the legislative intent to provide a unique and innovative punitive scheme for first offenders by excising their treatment from the general provisions of the Unified Code of Corrections. See Ill. Rev. Stat. 1973, ch. 56½, par. 701.

The majority of the appellate court approved the application of the sentencing provisions of the Unified Code of Corrections to section 10 treatment by concluding that such treatment was the equivalent of a “sentence upon a plea of guilty,” and thus fell under the specified meaning of “conviction” as defined in section 5—1—5 (Ill. Rev. Stat. 1973, ch. 38, par. 1005—1—5). We do not agree with this analysis. Such reasoning is not in accord with the manifest intent of the statutory language declaring that probationary treatment under section 10 shall not be a conviction, regardless of how the term “conviction” is defined in the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005—1—5). Also, the conclusion reached by the appellate court is not consistent with the intended operative effect of a section 10 proceeding. As , noted above, ordinary probation is a sentence authorized by the Unified Code of Corrections. However, we are compelled to conclude that the probationary status contemplated by section 10, unlike its Unified Code counterpart, does not amount to a sentence. Pursuant to the provisions of the Act quoted above, when a defendant pleads guilty to a first offense, further proceedings are deferred prior to any adjudication of guilt or entry of a judgment of conviction. Consequently, after the probationary status expires, the court must determine whether or not an adjudication of guilt is to be entered based on the defendant’s noncompliance or compliance with the probationary conditions. Probationary status under section 10, then, is in the nature of a continuance, and no adjudication of guilt or judgment of conviction may be entered until after the completion of the probationary period. This operative scheme does not apply to probation under the Unified Code of Corrections, which is imposed after an adjudication of guilt and entry of a judgment of conviction and, consequently, is properly considered to be a sentence. See People v. Glidden (1975), 33 Ill. App. 3d 741.

Because section 10 treatment is in the nature of a continuance, and does not amount to a conviction under the Unified Code of Corrections, the imposition of a fine against the defendant was unauthorized. In People v. Breen (1976), 62 Ill. 2d 323, this court held that dispositions imposed by the courts must be authorized by law. ,

Section 10 authorizes the court to impose “reasonable terms and conditions” of probation. (Ill. Rev. Stat. 1973, ch. 56½, par. 710.) Since a fine is a punitive measure, the imposition of a fine as a condition of probation under section 10 does not comport with the overall tenor of that section. It would appear incongruous to impose a fine as a condition of probation and then upon the satisfactory completion of probation to dismiss the charge and discharge the offender. To require the offender to suffer a • forfeiture of money under such circumstances does not appear to be reasonable in light of the general lenient purpose of the Act. For these reasons the court’s order that the defendant pay a fine as a condition of probation under section 10 must be reversed.

The State argues that section 10 requires the application of the Unified Code of Corrections in order to have a meaningful interpretation. We do not agree. While the courts have a wide range of discretion in fashioning treatment under the Act, we feel that the terms and conditions of section 10 probation should be both consonant and compatible with the lenient spirit and purpose of a scheme that deemphasizes punishment of first offenders. The precise nature of probationary treatment under section 10 will often depend upon the circumstances of each individual case. In any event, we are not persuaded that the courts will find it difficult to attach reasonable and effective conditions to section 10 probation without guidance from the Unified Code of Corrections, nor do we consider its application necessary for the purpose of defining the limits of the court’s discretion in dealing with first offenders under section 10.

The final question is whether or not a section 10 probationer may be assessed court costs, as provided for in the criminal costs statute (Ill. Rev. Stat. 1973, ch. 38, par. 180—3). That statute provides that “any person *** convicted of an offense under any statute” can be required to pay court costs. However, as we have discussed above, probationary status under section 10 does not amount to a conviction, and hence there is nothing upon which the payment of costs can be predicated. Therefore, the court’s order assessing costs against the defendant in the amount of $25 must accordingly be reversed.

The judgment of the appellate court affirming the circuit court’s orders with respect to the imposition of the fine and costs is reversed. The orders of the circuit court imposing the fine and costs are also reversed.

Reversed.


text:
    (No. 49389.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERNEST LLOYD NICHOLLS, Appellant.

      Opinion filed March 23, 1978.

      Michael J. Rosborough, Deputy Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    William J. Scott, Attorney General, of Springfield, Michael J. Henshaw, State’s Attorney, of Harrisburg, Kelly D. Long, State’s Attorney, of Hillsborough, Howard L. Hood, State’s Attorney, of Murphysboro, Nicholas G. Byron, State’s Attorney, of Edwardsville, W. C. Spomer, State’s Attorney, of Cairo, Robert H. Rice, State’s Attorney, of Belleville, Herbert J. Lantz, Jr., State’s Attorney, of Chester, Robert F. A. Stocke, State’s Attorney, of Louisville, and Frank G. Schniedeijon, State’s Attorney, of Effingham (Donald B. Mackay and Charles H. Levad, Assistant Attorneys General, and Bruce D. Irish and Robert J. Anderson, of Illinois State’s Attorneys Association, of Mt. Vernon, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Defendant, Ernest Nicholls, was found guilty of murder and sentenced to 100 to 150 years in the penitentiary. On direct appeal to this court, his conviction was affirmed (People v. Nicholls (1970), 44 Ill. 2d 533). His petition for post-conviction relief was denied by the circuit court of Madison County. He appealed, in forma pauperis, and the Appellate Court for the Fifth District affirmed the denial (People v. Nicholls (1975), 33 Ill. App. 3d 650). Shortly thereafter the State filed petitions in the Appellate Court for the Fifth District in 28 criminal cases, including that of defendant Nicholls, in which the defendants had been unsuccessful in their appeals in that appellate court. The petitions sought judgment for State’s Attorneys’ fees of $60 in each case ($50 for defending the appeal and $10 per diem fee) (Ill. Rev. Stat. 1975, ch. 53, par. 8). All 28 petitions were consolidated for hearing and disposition. In a supplemental opinion the appellate court held that the State is entitled to have the State’s Attorneys’ fees assessed against unsuccessful criminal appellants, including indigents. One justice dissented. People v. Nicholls (1977), 45 Ill. App. 3d 312.

All of the issues decided by the appellate court and argued in this court were involved in the 28 consolidated cases. However, the supplemental opinion directed that it be filed only in the defendant Nicholls’ case and that similar orders be entered in the other cases. Review in this court has been sought only by Nicholls. Due to the nature of the offense of which he was convicted and the sentence imposed, it is highly unlikely that any questions concerning satisfaction of a judgment for costs from bail is relevant to this case. Also, certain other issues raised are not relevant here. However, these issues are relevant to some of the other 27 cases that were considered with the Nicholls case in the appellate court, and further proceedings in those cases have been stayed pending our disposition of this case. We will therefore consider all of the issues that have been raised on appeal.

The issues which the defendant has presented to this court are:

(1) Whether the State’s Attorney’s fee for defending an unsuccessful appeal by a convicted criminal defendant may be assessed as costs;
(2) Whether a bail deposit posted for an accused may be used to satisfy the obligation for the State’s Attorney’s fee, notwithstanding the defendant’s alleged indigency;
(3) Whether the State’s Attorney is entitled to his fee when a convicted defendant is partially successful on appeal.

Several statutory provisions are relevant. The criminal costs statute provides:

“When any person is convicted of an offense under any statute *** the court shall give judgment that the offender pay the costs of the prosecution.” (Ill. Rev. Stat. 1975, ch. 38, par. 180-3.)

Section 8 of “An Act concerning fees and salaries ***” ' provides:

“State’s attorneys shall be entitled to the following fees:
* * *
For each case of appeal taken *** to the Supreme or Appellate Court ***, $50.
For each day actually employed in the trial of a case, $10; ***.
* * *
All the foregoing fees shall be taxed as costs to be collected from the defendant, if possible, upon conviction. ***” (Ill. Rev. Stat. 1975, ch. 53, par. 8.)

Section 22 of “An Act to revise the law in relation to costs” provides:

“If any person shall take an appeal, *** and the same judgment be affirmed ***, the appellee shall recover his costs, and have execution therefor; ***.” (Ill. Rev. Stat. 1975, ch. 33, par. 22.)

Section 25 of the latter act provides:

“The clerk of any court in this state is hereby authorized and required to tax and subscribe all bills of costs arising in any cause or proceeding instituted in which he is clerk, agreeably to the rates which shall, for the time being, be allowed or specified by law; and shall in no case allow any item or charge unless he shall be satisfied that the service for which it was made was actually performed in the cause.” Ill. Rev. Stat. 1975, ch. 33, par. 25.

The defendant correctly notes that the allowance and recovery of costs, being unknown at common law, rests entirely upon the statutory provisions, which must be strictly construed (Galpin v. City of Chicago (1911), 249 Ill. 554, 556). Numerous jurisdictions allow the assessment of prosecution costs, but since such action is based on statute, interpretations of what constitutes allowable costs and when they may be assessed vary widely. (See Annot., 65 A.L.R.2d 854 (1959); Comment, Charging Costs of Prosecution to the Defendant, 59 Geo. L.J. 991 (1971).) In Illinois, basic authority for the assessment for the prosecution costs against defendant is found in the criminal costs statute (Ill. Rev. Stat. 1975, ch. 38, par. 180—3), quoted above.

In Corbin v. People (1893), 52 Ill. App. 355, 357, “costs of the prosecution,” under the statute involved here, were held to be “all the costs and fees legally earned and taxable in the case.” The court in Corbin also stated:

“When a defendant is convicted the judgment is that he pay the fees thus appearing on the fee book, subject, of course, to his right to question the correctness of the bill by motion to re-tax, or by replevin of the fee bill. A judgment for the costs is incidental to a judgment of conviction. Moody v. People, 20 Ill. 315." 52 Ill. App. 355, 357.

The above-quoted statutory provisions are sufficiently inclusive to authorize and, in fact, direct the clerk to tax as costs and the judgment to include, the specified fees on appeal, as well as at the original trial of the case.

The defendant argues that section 8 of “An Act concerning fees and salaries” (Ill. Rev. Stat. 1975, ch. 53, par. 8) was originally enacted to provide compensation to State’s Attorneys prior to the time that they received salaries. Since the office of the State’s Attorney is a salaried position (Ill. Rev. Stat. 1975, ch. 53, par. 7), defendant contends that section 8 is obsolete and should not be applied to the purpose of reimbursing the State for expenses in defending appeals. This court has previously rejected this argument. (See People v. Kawoleski (1923), 310 Ill. 498.) Also, the fact that the section of the statute providing for State’s Attorneys’ fees has not been repealed but was, in fact, amended by the legislature as recently as 1975 (Pub. Act 79—645, sec. 1) evidences its current viability. In summary, we believe that the above-quoted statutory provisions, when read together, indicate a legislative scheme which authorizes the assessment of State’s Attorneys’ fees as costs in the appellate court against an unsuccessful criminal appellant upon affirmance of his conviction.

The question of whether an indigent can be assessed these fees and whether the same may be incorporated as. part of the affirmance judgment of the appellate court against an indigent requires an examination of the various sections of the statutes relating to costs in litigation involving poor persons. Section 5 of “An Act to revise the law in relation to costs” (Ill. Rev. Stat. 1975, ch. 33, par. 5) provides:

“If any court shall, before or after the commencement of any suit, be satisfied that the plaintiff or defendant is a poor person, and unable to prosecute or defend suit and pay the costs and expenses thereof, the court may, in its discretion, permit him to commence and prosecute his action, or defend suit, as a poor person; and thereupon such person shall have all the necessary writs, process, appearances and proceedings, as in other cases, without fees or charges. The court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without any fees, charge or reward. If judgment be entered for the plaintiff or defendant there shall be judgment for his costs; which costs shall be collected for the use of the officers. If the suit is settled without the entry of judgment, the party who has thus been permitted to sue or defend as a poor person shall nevertheless be under the duty of paying forthwith to the Clerk of the Court and the Sheriff respectively, out of any moneys or property received by him or on his account as the proceeds of any such settlement, the amount of all fees and charges which but for the leave given to sue or defend as a poor person, such party would have been required to advance to such officers respectively. ” (Emphasis added.)

The defendant argues that this provision indicates that indigent defendants may not be taxed costs or fees. We disagree. As the State points out, the statute provides that if the poor person recovers judgment, costs are to be collected for the officers. If the suit is settled, the poor person is obligated to apply any proceeds to pay all fees and charges which he would normally have been required to pay. In addition, section 5a of the Act creates a lien in favor of the clerk of the court and the sheriff upon every claim or demand and the proceeds of a suit commenced by a poor person. Section 6 also states that if judgment is entered against a poor person suing as a plaintiff it shall be for costs, unless otherwise ordered. The fact that the poor litigant is not absolved from the liability for costs and fees leads us to agree with the State that section 5 was only intended to provide equal access to the courts. We hold that section 5 does not completely waive fees and costs for poor persons; it merely allows them to be postponed so that all persons may pursue their legal remedies in the courts. Nor does the fact that the defendant was provided with appointed counsel preclude him from being held liable for costs. See People v. Harris (1968), 97 Ill. App. 2d 288.

Defendant also argues that it is incongruous to hold an indigent defendant liable for a $50 State’s Attorney fee while under our Supreme Court Rule 607 (58 Ill. 2d R. 607) he may be entitled to appointed counsel, a free transcript and may be excused from paying the filing fee on appeal. It may appear to be difficult to harmonize the rationale of these provisions of our rules with the statutes. However, since there is no expression of legislative intent to the contrary, a reasonable construction of these statutes compels that we hold that an indigent defendant may be assessed costs for a State’s Attorney’s fee for defending the unsuccessful appeal.

We next consider whether a cash bail deposit may be used to pay costs of an unsuccessful appellant. The majority of the appellate court held that cash bail posted under the 10% deposit provision (Ill. Rev. Stat. 1975, ch. 38, par. 110—7) is presumed to be posted by the defendant, and, relying on that construction, held that, to the extent of cash bail posted, a defendant is presumed not to be indigent for the purpose of paying a fine or costs. The defendant argues that the appellate court erred in creating a conclusive presumption that bail money is the property of the accused and, as such, may be used to pay costs assessed against him. Defendant points out that frequently relatives and friends of the accused put up the money to secure his release, especially when he is indigent. The result of applying this money to pay costs, defendant contends, will be to discourage relatives and friends from posting his bail.

We need not decide whether or not there is a conclusive presumption that the bail deposited under this section of the Act belongs to the defendant. Section 110—7, which provides for the deposit of 10% of the bail in subparagraph (a), provides in subparagraph (h):

“After a judgment for a fine and court costs or either is entered in the prosecution of a cause in which a deposit had been made in accordance with subsection (a) the balance of such deposit, after deduction of bail bond costs, shall be applied to the payment of the judgment.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 38, par. 110—7(h).)

Thus, under this section the deposit of 10% of the bail is not only for the purpose of ensuring defendant’s presence in court at an appointed time but also constitutes a fund from which a judgment for fine and costs against the defendant may be satisfied without the necessity of having an execution issue and a levy made upon the deposit, regardless of whose money was deposited. Whether or not the cash received as bail is actually the property of the defendant is irrelevant.

While we need not discuss at length the procedures for taxing costs, we wish to note that costs must be taxed in the court wherein they were incurred. The matter of assessing costs is governed by statute. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 441.) As noted in Crum v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1918), 212 Ill. App. 518, 519:

“There is no statute authorizing a trial court to tax as costs in that court, costs that are made in the Appellate or Supreme Court. The costs in those courts are disposed of in the judgments there entered.”

Thus, the authority of a clerk of a court of review to tax costs against the losing party arises from the judgment of that court. Also, the amount of bail on deposit with the clerk can only be applied to the satisfaction of those costs for which judgment has been entered, as provided in section 110— 7(h), quoted above.

Another issue raised in this appeal is whether the State’s Attorney is entitled to his fee when a convicted defendant is partially successful on appeal. Section 8 of “An Act concerning fees and salaries ***” (Ill. Rev. Stat. 1975, ch. 53, par. 8) provides that the State’s Attorney shall receive a fee for each conviction and further provides that no fees shall be charged on more than 10 counts in any one indictment or information on trial and conviction. Thus in the trial court the State’s Attorney would be entitled to a fee taxed as costs for each count on which a conviction is obtained (see People v. Kawoleski (1923), 310 Ill. 498). However, section 8 also provides that ,“[f] or each case of appeal” to the supreme or appellate court when prosecuted or defended by him the State’s Attorney shall receive a fee of $50. Section 8 also provides that “where judgment is in favor of the accused” the fees allowed the State’s Attorney shall be retained out of the fines and forfeitures collected in other cases. Thus the State’s Attorney is entitled to his one fee of $50 regardless of how many counts are included in the one case on appeal. Unless judgment in that case is entered in favor of the accused the appeal fee will be taxed as costs against the defendant even if convictions as to one or more counts but not as to all counts are reversed on appeal.

The defendant also contends that the State’s Attorney is not entitled to a per diem fee of $10 for argument on appeal. The relevant portion of section 8 provides:

“State’s attorneys shall be entitled to the following fees:
* * *
For each day actually employed in the trial of a case, $10; in which case the court before whom the case is tried shall make an order specifying the number of days for which a per diem shall be allowed.” (Ill. Rev. Stat. 1975, ch. 53, par. 8.)

As the State notes, the provisions for per diem fees for trials and habeas corpus hearings are separated from the provisions for conviction fees and appeal fees. We believe that the per diem allowance, not being limited to the circuit court proceedings, may be reasonably construed as also applying to oral argument in the appellate court. We note, however, that the record in the instant case does not contain an order by the appellate court specifying the number of days for which the per diem shall be allowed. In the absence of such an order, the per diem allowance may not be assessed.

In light of present-day county budgeting and accounting procedures, the provisions of section 8 (Ill. Rev. Stat. 1975, ch. 53, par. 8) relating to State’s Attorneys’ fees may appear to be a relic of another era which might well merit the attention of the legislature. However, these provisions are part of the body of the law of this State and, as such, it is the judicial function to construe and apply them. The judgment of the appellate court is therefore affirmed, except insofar as it taxes the $10 per diem fee as costs, as to which the judgment of the appellate court is reversed.

Affirmed in part and reversed in part.


author:
MR. JUSTICE MORAN MR. JUSTICE GOLDENHERSH,
      MR. JUSTICE DOOLEY,

text:
    (No. 48931.
    INTERNATIONAL HARVESTER, Appellee, v. THE INDUSTRIAL COMMISSION et al.-(Irving Steele, Appellant.)

      Opinion filed January 27, 1978.

      GOLDENHERSH, DOOLEY, and RYAN, JJ., dissenting.

      Sneider & Troy, of Chicago (Gayle F. Haglund, Robert C. Morton, and Ronald J. Nowicki, of counsel), for appellant.
    Raymond J. Kelly and Keith C. Hult, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The claimant, Irving Steele, appeals to this court from an order of the circuit court of Cook County which set aside the decision of the Industrial Commission (Commission) awarding him workmen’s compensation benefits. The claimant had been awarded $328 for first aid, medical, surgical and hospital services not covered by the claimant’s nonoccupational group insurance plan, and a total of $7,856.64 for temporary total incapacity and for the 20% loss of the use of his legs, pursuant to section 8 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, pars. 138.8(a), (b) and (e)).

The procedural chronology of this case is essential to an understanding of the dispute. On February 4, 1974, the arbitrator, in awarding workmen’s compensation benefits, found that the claimant, an induction hardener operator for the employer, International Harvester, sustained an industrial injury on July 10, 1972. After consideration of additional evidence and with the benefit of oral argument, the Commission affirmed the arbitrator’s decision. The Commission apparently posted its affirmance on April 10 or 11, 1975. On April 21, 1975, the employer, pursuant to section 19(f) of the Workmen’s Compensation Act, filed a petition with the Commission requesting that the Commission correct its decision to reflect that $3,576 had been paid to the claimant through the claimant’s nonoccupational group insurance plan. One week later, on April 28, the Commission filed its written decision. The employer received this decision by certified mail on April 30. On May 19, while the petition to correct was still pending before the Commission, the employer filed a petition for a writ of certiorari in the circuit court of Cook County. On July 1, that court granted the employer leave to withdraw the transcript of proceedings to permit the Commission to determine whether it would correct its alleged error. On September 2, hearing was held by the Commission regarding the employer’s petition to correct such error, and, on September 25, the Commission entered an order denying the petition. The employer did not file another petition for a writ of certiorari subsequent to the September 25 order.

On April 21, 1976, claimant moved the court to strike the May 19 petition for writ of certiorari and to dismiss the action on the ground that the court lacked jurisdiction inasmuch as no petition for a writ of certiorari had been filed subsequent to the Commission’s final decision on September 25, 1975. On July 13, the court denied the motion to dismiss. On August 31, 1976, the court set aside the decision of the Commission, stating that the claimant had not provided the employer with proper notice within 45 days of the accident as required under section 6(c) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.6(c)). The claimant then appealed directly to this court pursuant to Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)). Because we hold that the court erred by denying the claimant’s motion to dismiss for want of jurisdiction, we do not reach the question of whether the claimant properly notified his employer within 45 days of the accident.

Section 19(f)(1) provides that the circuit court shall, by writ of certiorari, have the power to review the decision of the Industrial Commission, and that suit shall be commenced within 20 days of the receipt of notice of the decision of the Commission. (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f)(1).) It is well recognized that the circuit court can obtain jurisdiction only in the manner prescribed by the legislature, and that the party petitioning for a writ of certiorari must comply with all the conditions required by statute. (Berry v. Industrial Com. (1973), 55 Ill. 2d 274, 277; Moweaqua Coal Mining & Manufacturing Co. v. Industrial Com. (1926), 322 Ill. 403, 405.) Although the statute does not directly define the term “decision,” this court has held that “a final determination by the Commission is contemplated.” (Emphasis added.) (Metropolitan Sanitary District v. Industrial Com. (1967), 37 Ill. 2d 447, 449.) The employer acknowledges that it did not petition for a writ of certiorari subsequent to the September 25 final decision of the Commission. The employer contends, however, that its May 19 certiorari petition was not premature because the circuit court retained jurisdiction over the cause during the period in which the petition to correct was pending before the Commission. The employer’s contention rests upon a restrictive interpretation of section 19(f) of the Workmen’s Compensation Act, which section reads:

“The decision of the Commission acting within its powers, according to the provisions of paragraph (e) of this Section shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award oh arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for appeal or review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f).

The employer asserts, in essence, that the Commission’s original decision of April 28 was final and appealable unless the Commission recalled and corrected its original decision within 15 days. The employer reads the last sentence of section 19(f) to imply that where such correction is not made, the time for appeal or review shall begin to run from the date of receipt of the original decision. We do not agree.

The purpose of section 19(f) is to provide the Commission an opportunity to correct its own clerical or computational errors so as to avoid the necessity of having the circuit court review such errors. The first sentence of the section provides that the decision of the Commission shall be conclusive unless reviewed for such clerical or computational errors. It is apparent that the statute, when read as a whole, vests continuing jurisdiction in the Commission to correct its alleged errors and that its decision is not final until the Commission determines whether or not to correct such errors. This court’s decision in Zbilski v. Industrial Com. (1971), 48 Ill. 2d 131, supports this interpretation. In Zbilski, the Commission, on its own motion and within 15 days of its decision, notified the parties of an error in its decision which denied workmen’s compensation benefits. It requested that the parties return their copies of the decision. The employee failed to return his copy and filed a petition for a writ of certiorari in the circuit court. Pursuant to the writ of certiorari, the circuit court set aside the decision of the Commission and reinstated the decision of the arbitrator awarding compensation. On appeal, this court reversed and remanded to the Commission, holding that “ [s] ince the Commission ***■ acknowledged that there was an error in its decision on review and had recalled the same, the court is not in a position to review the decision of the Commission until a final corrected decision has been made.” Zbilski v. Industrial Com. (1971), 48 Ill. 2d 131, 134.

The employer mistakenly construes Zbilski to imply that, although jurisdiction to correct errors continued to reside in the Commission, the circuit court also had jurisdiction in the interim. Zbilski stands for the proposition that jurisdiction will not attach in the circuit court until the Commission renders its final decision. This is so whether the Commission ultimately allows or denies the relief requested in a petition to correct errors. This proposition is fully consistent with accepted procedural practices in related areas of the law. For example, a timely motion for rehearing, filed with an administrative agency pursuant to the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264), prevents the original decision or order of the agency from being final and appealable. Only upon the disposition of the motion itself will the agency determination constitute a final and appealable order. Prematurely filing a petition for review in the court (prior to disposition of the motion pending before the agency) cannot confer jurisdiction to the reviewing court. See Clean Air Coordinating Committee v. Environmental Protection Agency (1976), 42 Ill. App. 3d 124, 128; Norris v. Board of Fire & Police Commissioners (1975), 30 Ill. App. 3d 224, 227.

The employer reads this court’s decision in Schumann v. Industrial Com. (1975), 61 Ill. 2d 241, as implicitly recognizing that it need not file another petition for a writ of certiorari after the rendering of the Commission’s section 19(f) decision. The Schumann opinion, however, does not indicate whether, subsequent to the Commission’s corrected decision, the claimant filed a second petition for a writ of certiorari. In Schumann, the Commission reversed the arbitrator’s award, finding that notice to the employer was not provided within the statutory time limit. The employer, noticing an inconsistency in the Commission’s decision, filed a timely motion with the Commission to correct the alleged error, while the claimant proceeded to file a petition for a writ of certiorari in the circuit court. Shortly thereafter, the Commission issued a corrected decision. On certiorari, the trial court set aside both decisions of the Commission and reinstated the arbitrator’s award. Upon reviewing the case on its merits, this court reversed the judgment of the circuit court. The issue of the circuit court’s jurisdiction was not raised or addressed in the Schumann case.

It should be recalled that, in this case, the employer chose to petition the Commission to correct an alleged error. Upon filing such petition, it became incumbent upon the employer to await the Commission’s final determination before seeking review in the circuit court.

Section 19(f) and section 19(f)(1) are consistent with accepted procedural practice only if they are interpreted to provide (1) that the arbitrator, the Commission or either party must submit any motion to correct clerical or computational errors within 15 days after the receipt of the arbitrator’s findings or of the Commission’s decision on review; (2) that, upon the timely submission of such motion, the arbitrator or the Commission shall retain exclusive jurisdiction over the cause until said motion is finally resolved; and (3) that any petition for a writ of certiorari filed prior to the resolution of a motion to correct such errors is premature, in that it is based on a decision which is not final and appealable.

The employer’s May 19 petition for a writ of certiorari, filed prior to the Commission’s final determination, was premature. As a consequence, the circuit court lacked jurisdiction to review the decision of the Industrial Commission and, therefore, erroneously denied the claimant’s motion to dismiss for want of jurisdiction. •

Accordingly, the judgment of the circuit court of Cook County is reversed and the decision of the Industrial Commission is reinstated.

Judgment reversed; award reinstated.

MR. JUSTICE GOLDENHERSH,

dissenting:

I agree with and join in Mr. Justice Dooley’s dissenting opinion. I would also point out that the effect of the majority opinion is to create a petition for rehearing procedure where none was intended by the statute. The record shows that the Industrial Commission posted notice of its decision on April 10, 1975, and that the employer received the Commission’s decision on April 30. Prior thereto the employer had filed a petition pursuant to section 19(f) (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f)) requesting that the Commission correct its decision by reflecting certain credits for payments made by the employer. As stated by Mr. Justice Dooley, the “correction” requested was clearly not the type of “clerical error” or “error in computation” contemplated by the statute.

The Commission did not enter an order denying the petition until September 25, 1975. The practical effect of the majority decision, therefore, was to extend from April 30 to September 25, a period of approximately five months, the time when the period during which certiorari could be sought commenced to run.

The claimant here was injured on July 2, 1972. The arbitrator’s decision was not rendered until February 4, 1974. The statute should not be interpreted so as to further delay the disposition of the claims of injured employees. It is clear from the explicit language of the statute that it is only “ [w] here such correction is made” that the time during which certiorari may be sought begins to run from the date of the receipt of the corrected award or decision. (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f).) I agree with Mr. Justice Dooley that we should consider this case on its merits.

MR. JUSTICE RYAN joins in this dissent.

MR. JUSTICE DOOLEY,

also dissenting:

There are compelling reasons which dictate against the conclusion reached here. First, the decision of the Industrial Commission was never corrected. This means there was but one viable decision from which review had to be sought. Secondly, it is an approved practice that, during the pendency of an appeal to the circuit court from the Industrial Commission, the circuit court — as was done here — may allow the Industrial Commission to withdraw its return to the writ of certiorari and make corrections in the recorded proceedings. Thirdly, section 19(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f)) is inapplicable to this situation, involving more than an error in computation. And, lastly, this construction of the statute would deprive the employer of a very substantial right, namely, that of review.

There is but one decision of the Commission from which an appeal was taken. Under the statute in question, the decision of the Commission is “conclusive” unless review by a writ of certiorari to the circuit court is commenced within 20 days of the receipt of notice of the decision of the Commission. Section 19(f) permits clerical errors in the computation of the award of the arbitrator or the decision of the Commission to be corrected within 15 days after the receipt of the award or decision, whatever the case may be. And — this is important — “[w] here such correction is made the time for appeal or review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” Ill. Rev. Stat. 1973, ch. 48, par. 138.19(f).

Here, on April 30, 1975, the employer was notified of the adverse decision of the Industrial Commission. Within 20 days it commenced a suit in the circuit court by certiorari to review that decision. During the pendency of the cause in the circuit court, on motion of the employer, the court entered an order releasing the transcript of proceedings so that it could be returned to the Commission to show that a substantial sum had been paid claimant through a nonoccupational group insurance plan.

But on September 25, 1975, the Commission denied the employer’s petition to change the transcript so as to give it this particular credit. Obviously, the decision of the Commission was the same as that which the employer had received on April 30, 1975, and from which review had been timely sought. Accordingly, the clause in 19(f) — “[w] here such correction is made the time for appeal or review herein specified shall begin to run from the date of the receipt of the corrected award or decision” — has no application here.

The statement, “[t] he employer’s May 19 petition for a writ of certiorari, filed prior to the Commission’s final determination, was premature” (71 Ill. 2d at 188), fails to recognize that unless the employer sued out the writ of certiorari on May 19, 1975, the award would have been “conclusive.” Since the Commission did not alter its original decision, there was no decision of the Industrial Commission to appeal from on September 25, 1975. The employer’s lawyer, in appealing from the decision received April 30, 1975, did what any careful practioner would do to obtain a review of this decision.

The inherent error in the majority opinion, in my opinion, is the want of recognition that the proper practice during the pendency of an appeal from the Industrial Commission to the circuit court is for the circuit court to enter an order authorizing the Industrial Commission to withdraw its return to the writ of certiorari and to make corrections even in the report of proceedings before the Commission.

In Lumbermen’s Mutual Casualty Co. v. Industrial Com. (1922), 303 Ill. 364, the petitioner filed a motion to quash the writ of certiorari to the circuit court from the Industrial Commission. It was urged that the court lacked jurisdiction since the record returned to the writ did not contain the employer’s insurance policy and since no stenographic report, authenticated by the parties or the arbitrator, had been filed at the time of hearing on review.

The employer moved the court for leave to withdraw the return to the writ of certiorari so that corrections and additions could be made to show a complete record of the proceedings before the arbitrator and the Industrial Commission. This motion was denied. The writ was quashed and the proceeding dismissed. In reversing the circuit court, this court stated:

“A party seeking a review and acting in good faith complies with the law by filing a transcript within the time limited and cannot be prejudiced by the fact that there are disputes as to its correctness. When a record is returned to a writ of certiorari the court has power to authorize the withdrawal of the record to make additions and corrections so as to make it speak the truth, [citation] and having that power, should exercise it upon a showing that the return is incomplete or incorrect.” 303 Ill. 364, 369.

To the same effect see Heckard v. Industrial Com. (1933), 353 Ill. 197, 200, and Lawrence Ice Cream Co. v. Industrial Com. (1921), 298 Ill. 175, 180.

Section 19(f) is not relevant here. It deals with a clerical error or errors in computation. This is illustrated in the case law as failures to fix the time for commencement of payments (Franklin County Mining Co. v. Industrial Com. (1926), 323 Ill. 98, 107) or rendering an order for compensation for the loss of use of the wrong extremity (Centralia Coal Co. v. Industrial Com. (1920), 294 Ill. 325, 326). These would understandably be within the provision of section 19(f).

Here there was no such error in computation. What the employer sought was to have the award reflect a credit of $3,576 representing the sum the claimant had received as a result of a nonoccupational group insurance plan. In allowing the employer’s motion to withdraw the transcript of proceedings to bring this matter before the Commission, the circuit court could well have acted under its powers spelled out in Heckard v. Industrial Com. (1933), 353 Ill. 197, Lumbermen's Mutual Casualty Co. v. Industrial Com. (1922), 303 Ill. 364, and Lawrence Ice Cream Co. v. Industrial Com. (1921), 298 Ill. 175. This is what occurred here. The jurisdiction of the circuit court was in nowise impaired.

Lastly, I have noted that the statute, as construed, would mean that the employer had been deprived of a very substantial right, that of reviewing the decision of the Industrial Commission. And this, notwithstanding there was no corrected decision of the Industrial Commission which would make section 19(f) operative.

It is well established that our function is to construe statutes so as to be applied in a practical and common sense manner. (People ex rel. Singer v. Illinois Central R.R. Co. (1940), 373 Ill. 523, 526; People ex rel. Schaefer v. New York, Chicago & St. Louis R.R. Co. (1933), 353 Ill. 518, 521.) Our duty is to divine the intent of the General Assembly and, in so doing, consider the purpose of the law and the object to be accomplished. (People v. McCoy (1976), 63 Ill. 2d 40, 45; People ex rel. Kucharski v. Adams (1971), 48 Ill. 2d 540, 543.) In accomplishing this obligation, each word, clause or sentence must be given effect wherever possible so that no such word, clause or sentence may be deemed superfluous or void. Consumers Co. v. Industrial Com. (1936), 364 Ill. 145, 149.

It is obvious that the General Assembly intended this particular statute to cover situations where there was an error in computation, and where the writ of certiorari had not been sued out — not situations where an employer contends that he should receive a credit.

The majority interprets the statute so as to deprive a party of the right of review. I do not believe the General Assembly intended that the path from the Industrial Commission to the circuit court should be an obstacle course.

We should decide this case on the merits.


author: MR. JUSTICE CLARK

text:
    (No. 50005.
    JOSEPH B. CORYN, Appellant, v. THE CITY OF MOLINE et al., Appellees.

      Opinion filed March 23, 1978.

      William M. Walker and James J. Coryn, of Rock Island (Coryn, Walker & Meehan, of counsel), for appellant.
    Stuart R. Lefstein, of Rock Island (Katz, McAndrews, Durkee & Telleen, of counsel), for appellees.
    Klein, Thorpe & Jenkins, of Chicago (Arthur C. Thorpe and Terrence M. Barnicle, of counsel), and Pfeifer & Kelty, of Springfield, for amicus curiae the Illinois Municipal League.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This case involves the power of home rule units “to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision of special services to those areas and for the payment of debt incurred in order to provide those special services” pursuant to section 6(/)(2) of article VII of our constitution (Ill. Const. 1970, art. VII, sec. 6(l)(2)) and “An Act to provide the manner of levying or imposing taxes for the provision of special services***” (Ill. Rev. Stat. 1975, ch. 120, par. 1301 etseq. (hereinafter referred to as the “Special Services Act”)).

The city of Moline enacted an ordinance designating an area within its boundaries as “City of Moline Special Service Area Number One,” within which property would be subject to additional taxes to fund the building and maintenance of ashopping mall. Plaintiff, Joseph B. Coryn, an owner of property located within the proposed special service area, brought this action in the circuit court of Rock Island County, seeking to enjoin the defendants, the city of Moline, and its mayor, its clerk and its treasurer, from executing the ordinance. Plaintiff’s theory was that, because the mall involved more than just a “service,” and because the “benefits” of the proposed mall would extend to the city as a whole rather than to the special service area in particular, the proposed shopping mall did not qualify for treatment as a “special service” to his area, and that, even if it did so qualify, financing the mall through the imposition of additional tax on his property would deprive him of property without due process of law. Plaintiff also objected to the statutory procedure for vetoing the plan, which required a petition signed by 51 percent of the local electors, as well as by 51 percent of the owners of record of property within the area (Ill. Rev. Stat. 1973, ch. 120, par. 1309). He claimed that requiring him to obtain the signatures of persons who did not own land subject to tax also deprived him of property without due process of law, and constituted “an invalid delegation of taxing authority.”

The circuit court granted defendants’ motion for judgment on the pleadings and dismissal of the complaint pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 45).

After his post-trial motion was denied, plaintiff filed a notice of appeal to the appellate court, and we granted defendants’ motion to transfer the cause directly to this court pursuant to Supreme Court Rule 302(b) (58 Ill. 2d R. 302(b)). We affirm.

An ordinance adopted by a local unit of government, which purports to exercise a power vested in that local unit of government by our constitution (and statutes, if applicable), is presumptively valid. (See generally Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432-33.) To justify his request for an injunction against the execution of such an ordinance plaintiff had the burden of pleading facts which, if proved, would have established that the tax was unauthorized because the ordinance was unauthorized, unconstitutional or otherwise invalid. (See generally La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318.) We agree with the circuit court that plaintiff has failed to plead such facts.

First, plaintiff has failed to plead facts which would have established that the proposed shopping mall is not a “special service” as that term is used in the Constitution and in the Special Services Act.

The constitutional meaning of the term is the controlling one, because section 6(Z) of article VII of our constitution expressly prohibits the legislature from limiting the power of home rule units to create special service areas. The scope of the legislature’s role is limited to providing the “manner” or procedure for the creation of such areas. We thus construe the scope of the statutory definition of “special services” to be coextensive with that of the constitutional provision.

As with any constitutional or statutory provision, the best indication of the intent of the drafters is the language which they voted to adopt. Here, that language, “special services,” not only is itself very broad and unqualified, but “shall be construed liberally” (Ill. Const. 1970, art. VII, sec. 6(m)). Construed liberally, the power to establish special service areas is broad enough to encompass the proposed shopping mall at issue in this case.

The involvement of substantial assets does not prevent this mall from being a “service.” The reference in article VII, section 6(1), to the use of special services taxes to fund “debt” strongly implies that “special services” often may involve the use of substantial assets, such as those to be acquired in connection with the proposed shopping mall in this case. Debts large enough to require funding over a period of years normally would not be incurred to pay for daily operations. Rather, the reference to “debt” suggests that to provide “special services” a home rule unit may acquire substantial assets which will produce benefits over a period of several years, and be funded through debt instruments payable over a similar period. We find additional support for this interpretation in the report of the Committee on Local Government of the Sixth Illinois Constitutional Convention, which refers to “capital improvement [s] ” as being within the scope of the constitutional provision as originally proposed. (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1662 (hereinafter Proceedings). See also Anderson & Lousin, From Bone Gap to Chicago: A History of the Local Government Article of the 1970 Illinois Constitution, 9 J. Mar. J. Prac. & Proc. 698, 778 (1976).

The benefits which allegedly will accrue to the rest of the home rule unit from the proposed mall do not make it “not special” to the area proposed to be taxed. While section 6(l)(2) requires that the area taxed must be the area served, the primary determination of that area is left to the home rule unit. The degree and manner of correlation required between the area taxed and the area served is not apparent on the face of the constitutional provision, and we have found no reference to the subject in the proceedings of the constitutional convention. Nor does this court’s decision in Oak Park Federal Savings & Loan Association v. Village of Oak Park (1973), 54 Ill. 2d 200, shed any light upon the questions presented by the instant case. In Oak Park the only question decided by the court was whether the constitutional provision was self-executing. Although the ordinance challenged in Oak Park did involve a pedestrian mall, the opinion does not suggest that the ordinance would have been authorized by the Constitution but for the absence of enabling legislation.

We conclude that the potential impact of this proposed mall upon the city of Moline as a whole does not prohibit its treatment as a special service to “City of Moline Special Service Area Number One.” If the project reasonably could have been expected by the home rule unit to make the area taxed, in particular, a better place in which to reside or to conduct business, it qualifies as a “special service” even though it also may redound to the benefit of the remainder of the home rule unit.

Nor does plaintiff’s allegation that his additional taxes will exceed any additional benefits received allege facts constituting a denial of due process or of the equal protection of the laws. The taxes imposed upon property within a special services area need not directly correspond to the monetary value of the benefits received. (See People ex rel. Hanrahan v. Caliendo (1971), 50 Ill. 2d 72, 79-80; cf. Memphis & Charleston Ry. Co. v. Pace (1930), 282 U.S. 241, 75 L. Ed. 315, 51 S. Ct. 108.) Under the equal protection and due process clauses of the constitutions of Illinois and the United States there need only be a rational basis for taxing a given area for a given “special service,” and we hold that the mere alleged excess of additional taxes payable over additional services received does not render the whole scheme of taxation irrational and unconstitutional. Our holding on this point, however, does not mean that local units of government are completely free to gerrymander the boundaries of special service areas to maximize revenues, without regard to whether there is a rational relationship between the property taxed and the property served. Evidence of such fraudulent procedures might justify invocation of a court’s equity jurisdiction. (Cf. generally, La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318.) There is no such allegation in the pleadings of this case, and we see no way for plaintiff to amend his pleadings to state such allegations without completely changing his theory of the case.

Finally, we hold that the procedure provided by the Special Services Act for the veto of the creation of special services areas neither denies plaintiff due process and the equal protection of the laws nor constitutes “an invalid delegation of taxing power.”

The veto procedure provided by section 9 of the Special Services Act (Ill. Rev. Stat. 1973, ch. 120, par. 1309) does not deny plaintiff due process or the equal protection of the laws because there is a rational basis for requiring the signatures of persons other than the owners of record of property to block the project. Other residents of the area have a significant stake in its character, and many of them, as leaseholders, indirectly may be subject to the additional taxes imposed. Nor is this procedure an “invalid delegation of taxing power,” for it delegates even less power to the voters than the referendum procedure upheld in People ex rel. Hanrahan v. Caliendo (1971), 50 Ill. 2d 72.

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

Judgment affirmed.


author: MR. JUSTICE DOOLEY

text:
    (No. 49981.

      In re DAVID ALSWANG, Attorney, Respondent.

      Opinion filed April 3, 1978.

      Leonard M. Ring, of Chicago, for respondent.
    Jack Toporek, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
   MR. JUSTICE DOOLEY

delivered the opinion of the court:

This is a review of a recommendation of the Attorney Registration and Disciplinary Commission. The Review Board recommended that the respondent, David Alswang, a member of this bar for 50 years, should be censured for instituting a malicious prosecution action against a former client, Fannie Claybon. Respondent’s action was filed after the Commission dismissed charges filed by Mrs. Claybon.

Does the filing of a malicious prosecution action by an attorney against the client who has unsuccessfully filed charges against him before the Disciplinary Commission constitute grounds for disciplining the attorney? This is the issue for decision here. The Illinois State Bar Association has been granted leave to file a brief as amicus curiae. It urges that the issue here is one of consequence to all Illinois lawyers, and that the Commission exceeded its authority.

Mrs. Claybon originally retained respondent in 1966 to handle a personal injury claim. In March 1971 she contacted respondent regarding her husband’s withdrawal of her funds from a joint savings account and her advance of a large sum of money for his purchase of a car in his own name. She sought settlement of their financial difficulties but did not desire a divorce, although the marital relationship was strained.

Mrs. Claybon saw respondent on other occasions. On March 12, 1971, she paid him a retainer of $250, and on April 20, 1971, the following agreement was entered into:

“I hereby employ DAVID ALSWANG attorney, to prosecute all claims for property against George W. Claybon settlement of property or monies due me from said George W. Claybon and in consideration for his services rendered and to be rendered, I agree to pay him a sum of money equal to 1/3 if settlement is made without suit and 1/3 in the event of suit, of any amount received or realized from said claim. This does not include fees from services in securing or defending divorce actions.
Is/ FANNIE CLAYBON”

On April 18, 1971, a divorce action had been filed by Mr. Claybon. Respondent admittedly did everything necessary to protect Mrs. Claybon’s interest in these proceedings. On February 2, 1973, Mrs. Claybon paid respondent a further sum of $2,000 as payment on account.

During the course of the protracted proceedings, Mrs. Claybon forged her husband’s name to certain insurance checks issued to her husband and herself as payee in payment of fire and theft losses on their home. The respondent represented Mrs. Claybon on a hearing before the State’s Attorney’s office on a possible forgery indictment.

Eventually the divorce decree was entered. Mrs. Claybon was awarded a two-unit apartment building and its rent, certain furniture, $3,000 in lieu of alimony, and $1,500 for attorney’s fees.

On July 31, 1973, respondent billed Mrs. Claybon for services. Although the total bill was $6,328.75, she was allowed a credit for the $250 retainer, the $2,000 payment on account, and the $1,500 attorney’s fee awarded under the divorce decree. This left a balance owing respondent in the amount of $2,578.75.

Mrs. Claybon thought the original agreement gave respondent $1,000, being one-third of the $3,000 settlement in lieu of alimony. Since she had already paid him $2,250, she believed she was entitled to a refund. Respondent explained his bill represented his costs for services on a per diem basis. He explained that the settlement in lieu of alimony award had been far less than he expected. Accordingly, he waived his one-third portion of the settlement under the contingent-fee agreement. Methods of payment of the balance were discussed by Mrs. Claybon and respondent.

On January 21, 1974, Mrs. Claybon filed a complaint with the Attorney Registration and Disciplinary Commission alleging respondent’s bill was “not in compliance with an initial agreement, nor commensurable with the work involved and was unfair and unjust.” Yet, on January 27, 1974, Mrs. Claybon wrote respondent to advise him “that I am in the process of making arrangements to clear up the matter of the $2,578.75 balance you indicated I owed you.”

On February 6, 1974, respondent wrote Mrs. Claybon that, since she had seen fit to repudiate their agreement, he was adding $1,000, or one-third of the settlement in lieu of alimony, to his bill for services, raising the total to $3,578.75. The charges contained in Claybon’s complaint were referred to the Inquiry Board of the attorney disciplinary system. On September 9, 1974, respondent appeared before a panel of the Inquiry Board, which explained that a contingent fee in divorce proceedings was not in accord with public policy. Respondent agreed to forgo any claim for the additional $1,000 contingent fee, but stated that he would pursue collection of the remainder. A subsequent letter to that effect was received by the Commission. On October 4, 1974, the Inquiry Board voted to dismiss the complaint.

Respondent subsequently filed suit on April 2, 1975, against Mrs. Claybon. In a two-count complaint, respondent sought $2,578.75 as the balance of his fees and $50,000 exemplary and actual damages on a charge of malicious prosecution. Defendant Claybon moved to dismiss the complaint. The trial court denied the motion with respect to count I, which is still pending. It granted the motion to dismiss with respect to count II, holding that the filing of a professional grievance against an attorney was privileged. Respondent appealed the dismissal of count II. The appellate court affirmed (Alswang v. Claybon (1976), 40 Ill. App. 3d 147), finding that respondent had failed to adequately allege “special injury” and malice by pleading conclusions rather than facts.

While respondent’s appeal was still pending, the Administrator of the Attorney Registration and Disciplinary System commenced the instant proceeding against respondent. The complaint contained three counts. Count I alleged that respondent entered into a contingent-fee arrangement in a divorce proceeding. Count II charged respondent with seeking to charge Mrs. Claybon on an hourly as well as a contingent basis. Count III alleged that respondent’s suit against Mrs. Claybon for malicious prosecution was filed solely for harassment purposes.

The hearing panel recommended by a divided vote that respondent be suspended from the practice of law for one year, not upon the charges of either count I or II, but for prosecuting a suit for malicious prosecution against a client.

The Review Board recommended that respondent be censured, not suspended, for his conduct in filing a malicious prosecution suit against a client who had lodged a complaint against him with the Attorney Registration and Disciplinary Commission.

We believe respondent did not exercise good judgment in filing a suit for malicious prosecution against a former client. This, however, is not the issue before us. Nor are we concerned with whether, as a matter of law, a complaint filed with the Attorney Registration and Disciplinary Commission is privileged so that a malicious prosecution action cannot be based on it. That is at issue only in respondent’s suit against Mrs. Claybon.

Toft v. Ketchum (1955), 18 N.J. 280, 113 A.2d 671, adhered to on rehearing (1955), 18 N.J. 611, 114 A.2d 863, cert. denied (1955), 350 U.S. 887, 100 L. Ed. 782, 76 S. Ct. 141, noted in Alswang v. Claybon (1976), 40 Ill. App. 3d 147, 149, considers competing and conflicting policies in determining whether complaints filed before disciplinary bodies are privileged. In favor is the public interest to be served by encouraging those with knowledge of the unethical conduct of attorneys to bring such facts to the proper agency absent the threat of prosecution of a malicious prosecution action. An argument to the contrary against the treatment of complaints with disciplinary boards as “privileged sanctuaries” is that such will provide a vehicle for personal vendettas against the attorney through the filing of groundless charges. For analytical studies of Toft see 34 Chi.-Kent L. Rev. 324 (1956); 8 Ala. L. Rev. 340 (1955); 31 N.Y.U. L. Rev. 232 (1956); 24 Fordham L. Rev. 479 (1955); 10 Rutgers L. Rev. 456 (1955).

Our duty is described in In re Donaghy (1948), 402 Ill. 120, 123:

“The legal calling is a time-honored profession and the courts owe a duty to protect the public from impositions and improper practices. This duty has repeatedly been declared by this court. (People ex rel. Chicago Bar Ass'n v. Lotterman, 353 Ill. 399; People ex rel. Chicago Bar Ass'n v. Green, 353 Ill. 638; People ex rel. Chicago Bar Ass'n v. Hansen, 316 Ill. 502.) Such duty, and the manner in which it is exercised, must not be despotic, but the charges must be sustained by clear and convincing proof ***. The courts must not exercise their supervisory control in an arbitrary manner, but must show a legal discretion in the exercise thereof. In re Lasecki, 358 Ill. 69.”

Under the circumstances of this case, respondent should not be disciplined for filing an action open to the general public. Respondent has violated no canon of ethics. He has not interfered with the judicial process nor brought the legal profession into disrepute.

Accordingly, the complaint is discharged.

Complaint discharged.

       This opinion was prepared by the late Mr. Justice Dooley and was adopted and filed as the opinion of the court.