text:
    (No. 51775.
    THE PEOPLE ex rel. ROBERT J. BIER, State’s Attorney, et al., Petitioners, v. RICHARD F. SCHOLZ, JR., Judge, Respondent.

      Opinion filed September 19, 1979.

      Original petition for mandamus.

    Robert J. Bier, State’s Attorney, of Quincy, for petitioners.
    William J. Scott, Attorney General, of Springfield (Kenneth G. Anspach, Assistant Attorney General, of counsel), for respondent.
    William J. Harte, Ltd., of Chicago, for amicus curiae Illinois Judges Association.
   MR. JUSTICE WARD

delivered the opinion of the court:

The chief judge of the Eighth Judicial Circuit of Illinois, Richard F. Scholz, Jr., the respondent, entered an administrative order on February 7, 1979, which, inter alia, provided for annual salaries of $18,000 for the chief probation officer of Adams County and $15,000 for the superintendent of the Adams County Youth Home, commencing on January 1, 1979. These amounts corresponded to the respective salaries the respondent suggested in a proposed budget submitted to the Adams County Board of Supervisors (the Board) on July 31, 1978, but were in excess of the amounts actually appropriated by the Board in its “Annual Appropriation Ordinance” on. November 28, 1978. The Board’s enactment provided for salaries of $16,500 for the chief probation officer and $14,850 for the superintendent. We allowed a motion by the State’s Attorney of Adams County and by the Board for leave to file a petition for a writ of mandamus to direct the respondent to expunge those portions of the administrative order which set the salaries as above described. (58 Ill. 2d R. 381(a).) The Illinios Judges Association and the Illinois Probation and Court Services Association were each given leave to file a brief amicus curiae.

We must reject the first contention of the respondent that mandamus will not lie “to compel the undoing of an act.” This court in People ex rel. Carey v. Covelli (1975), 61 Ill. 2d 394, awarded a writ of mandamus directing a judge of the circuit court of Cook County to expunge an order directing the return of property seized under a search warrant issued by another judge of that court. (See also People ex rel. Carey v. White (1976), 65 Ill. 2d 193; People ex rel. Hanrahan v. Felt (1971), 48 Ill. 2d 171; People ex rel. Sears v. Romiti (1971), 50 Ill. 2d 51.) It is also argued by the respondent that the proper method for seeking review is by way of appeal from the respondent’s order rather than through an original action. It is true that appeal is the normal avenue of review, but under circumstances of importance to the administration of justice this court in its administrative and supervisory capacity may consider the issuance of a writ of mandamus though all of the normal criteria for the writ’s issuance do not appear. (E.g., People ex rel. Carey v. White (1976), 65 Ill. 2d 193, 197; People ex rel. Carey v. Covelli (1975), 61 Ill. 2d 394, 400-01; People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, 356;People ex rel. Hanrahan v. Felt (1971), 48 Ill. 2d 171, 174; People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 192.) We consider that a question of sufficient importance to the administration of justice is presented here for us to consider whether mandamus should issue.

The petitioners contend that constitutional and statutory provisions give the Board the authority and responsibility of setting the salaries involved:

“The salaries of clerks and other non-judicial officers [of the courts] shall be as provided by law.” (Ill. Const. 1970, art. VI, sec. 18(c).)
“The amount of compensation to be paid any probation officer or chief probation officer appointed by any circuit court, shall be determined by the board of commissioners or supervisors ***.” (Ill. Rev. Stat. 1977, ch. 38, par. 204 — 6.)
“The superintendent and matron [of a county detention home], as well as all other necessary employees, shall be appointed by the Chief Judge of the Circuit Court or any Judge of that Circuit designated by the Chief Judge, to serve during his pleasure, provided that each appointment shall terminate at the next meeting of the county board if not confirmed by a majority of the board. Each shall receive a monthly salary fixed by the county board. ***” Ill. Rev. Stat. 1977, ch. 23, par. 2683.

The respondent concedes that these provisions do call for the Board’s setting of the salaries, but he says that the Board’s authority in this regard is not unqualified. It is conditioned or limited, he says, by its statutory duty “[t] o provide reasonable and necessary expenses for the use of the *** judges ***.” (Ill. Rev. Stat. 1977, ch. 34, par. 432(Third).) In defense of his having ordered the payment of salaries in the larger amounts, the respondent argues that he has the duty to provide for probationary services in Adams County (Ill. Rev. Stat. 1977, ch. 37, par. 706 — 1), the authority as a chief judge to enter general orders in the exercise of his administrative authority under Rule 21 of this court (58 Ill. 2d R. 21), and inherent power to incur and direct the payment of expenses that are reasonably necessary for the efficient operation of the court, including expenses arising from his authority to employ necessary personnel and to fix reasonable salaries for them. The respondent contends that the legislature, under section 15 of “An Act providing for a system of probation ***” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 204 — 7, effective January 8, 1979), which, together with section 6 — 7 of the Juvenile Court Act, as amended (Ill. Rev. Stat., 1978 Supp., ch. 37, par. 706 — 7), provides for increased subsidization of salaries for probation officers, established a statewide policy to improve the quality of probationary services and that his providing for the higher salaries was in furtherance of this policy.

Under the circumstances presented we conclude that the administrative order, insofar as it related to the salaries in question, was improperly entered. The parties agree that it is the Board to which the General Assembly has expressly granted the power to set these salaries. We consider that the question thus is whether the Board exercised that power so unreasonably as to warrant the respondent’s use of express and inherent judicial powers through the administrative order to insure the efficient operation of the court.

It cannot be said that the differences between the salaries set by the Board and by the respondent’s administrative order show that the Board acted unreasonably. The difference of $150 annually in the salary for the Adams County Youth Home superintendent is slight. The difference of $1,500 in the chief probation officer’s salary is larger, and the Illinois Probation and Court Services Association states that even the salary the respondent ordered compares unfavorably with salaries paid in similar counties. On the record before us, however, we cannot say that the difference is so great that it can be deemed that the salary set by the Board must be judged to be unreasonably low and that the salary called for by the respondent is a necessity for the efficient operation of the court. Too, it is to be noted that the amounts appropriated by the Board represented increases of the salary levels of the previous year that were not insignificant, though these increases well may have been attributable to the respondent’s interest in improving the compensation of court personnel. In the case of the chief probation officer the Board’s appropriation called for a raise in salary from $14,300 to $16,500. If a greater increase is in order, we trust it will come in a new appropriation.

There would appear to be ongoing disagreements here as to the amounts to be appropriated for the proper operation of the court. The respondent in a pleading filed in this case claimed that there has been a neglect of the court in Adams County, asserting, among other complaints, a failure to provide courtroom facilities and to budget sufficient funds for the proper maintenance of the court’s law library. He stated, too, there was a refusal to provide bailiffs for courtrooms, which was remedied only by the respondent’s entering an administrative order. These claims are not before us, and whether they are valid or unfounded we need not consider.

Under our design for government, the legislative, executive and judicial branches are to be separate and equal. The public interest requires that they work in harmony. The judiciary has the responsibility of administering justice and insuring the free exercise of rights. Any default in the discharge of this responsibility would obviously be intolerable. Courts have inherent powers to protect themselves and the public they serve against default of their constitutional obligations. These powers are to enable them to perform their judicial functions with efficiency, independence and dignity. This court in People ex rel. Illinois State Bar Association v. Peoples Stock Yards State Bank (1931), 344 Ill. 462, 470, has observed that “[ujnder the constitution of this State the judicial power is vested solely in the courts” and that “[i] ncluded in this grant are all powers necessary for complete performance of the judicial functions.” The Supreme Court of Pennsylvania in Commonwealth ex rel. Carroll v. Tate (1971), 442 Pa. 45, 52, 274 A.2d 193, 197, holding that the judiciary has inherent power to determine what funds are reasonably necessary for its efficient and effective operation and the power to compel the payment of those funds, noted:

“[T] he Judiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer Justice, if it is to be in reality a co-equal, independent Branch of our Government.”

The Supreme Court of New Jersey this year affirmed a judgment of the appellate division of the superior court of New Jersey in a case with striking resemblance to the one here. In re Court Reorganization Plan (1978), 161 N.J. Super. 483, 391 A.2d 1255, aff’d (1979), 78 N.J. 498, 396 A.2d 1144, cert. denied (1979), 442 U.S. 930, 61 L. Ed. 2d 298, 99 S. Ct. 2861.

The assignment judge of Hudson County, New Jersey, serves as the chief of the judicial system in that county. He issued a series of orders in his administrative capacity, including orders designating personnel to serve as his assistants and establishing their salaries. The orders were entered only after discussions between the judge and legislative executives of the county had failed to resolve differences involving the court’s operation and when the county officials refused to approve the requests presented by the assignment judge.

The appellate division of the superior court of New Jersey, in upholding the administrative action of the judge, stated:

“It follows that a court, and in this case the assignment judge in his administrative capacity, has the inherent power to provide the facilities, personnel and resources reasonably necessary for the performance of the judicial functions in the county. And as a corollary thereof he must have the power to compel the appropriation and expenditure of funds by the coequal executive and legislative branches of government to accomplish such purpose, subject only to bounds of reasonable discretion. See Hazard, McNamara and Sen tilles, ‘Court Finance and Unitary Budgeting,’ 81 Yale L.J. 1286, 1287-1291 (1972); Vanderbilt, The Doctrine of Separation of Powers and its Presentday Significance (1953); Annotation, ‘Inherent Power of Court to Compel Appropriation or Expenditure of Funds for Judicial Purposes,’ 59 A.L.R.3d 569 (1974).
We should emphasize at this point that this inherent power should be exercised very sparingly, in deference to the prerogatives of the legislative and executive branches. It should be invoked by the judicial branch only where necessary personnel and facilities are not provided by the other branches of government through the traditional and conventional methods. ‘The separation-of-powers doctrine contemplates that the several branches will cooperate to the end that government will succeed in its mission.’ In re Zicarelli, 55 N.J. 249, 264, 261 A.2d 129, 137 (1970).
* * *
In applying these principles to the narrow appellate issue herein we conclude that with respect to the fixing of salaries for all the employees designated as assistants to the assignment judge, the latter has the inherent power to establish the compensation for such assistants provided that the quantum thereof is reasonable and appropriate. For cases sustaining the inherent power of the judiciary not' only to appoint necessary personnel but to fix their compensation see: [citations].” 161 N.J. Super. 483, 491-92, 391 A.2d 1255, 1259-60.

The court rejected the contention that the judge did not have the power to fix compensation because of legislation providing that the appointment of personnel and the fixing of salaries were matters for decision by county officials. The court said:

“As we have already noted, the inherent power of the judiciary stemming from its exclusive control of the courts and their administration is paramount to the right of the legislative or executive branches to interfere therewith. And since this inherent power is derived from constitutional imperatives it must transcend any legislative directives in conflict therewith.” 161 N.J. Super. 483, 494, 391 A.2d 1255, 1260.

We have commented at some length on this question of authority because of its importance in insuring the discharge of constitutional responsibilities imposed on the judiciary.

For the reasons given, the writ of mandamus is allowed, and it is directed that those portions of the respondent’s administrative order of February 7, 1979, herein discussed be expunged.

Writ awarded.


source: Caselaw Access Project

author: MR. JUSTICE WARD

license: Public Domain

text:
    (No. 51648.
    CLARICE R. SALTIEL, Appellee, v. SIDNEY R. OLSEN et al., Appellants.

      Opinion filed September 19, 1979.

    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Stuart D. Gordon, Assistant State’s Attorney, of counsel), for appellants.

      BHandle, Neistein, Richman, Hauslinger & Young, Ltd., and Lee J. Schwartz, of Chicago (Harry A. Young, Jr., and Lee J. Schwartz, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Clarice R. Saltiel, filed a complaint in the circuit court of Cook County against the defendants, Sidney R. Olsen, as the recorder of deeds and registrar of titles for Cook County, and Edward J. Rosewell, as the Cook County treasurer, for an injunction restraining them from retaining for the use of the county a portion of the monies received from the sale of revenue stamps in payment of the State tax upon the transfer of title to property imposed by the Real Estate Transfer Tax Act (Ill. Rev. Stat. 1977, ch. 120, pars. 1001 through 1008), and from disbursing said monies.

The complaint charged that a provision of section 3 of the Act (Ill. Rev. Stat. 1977, ch. 120, par. 1003) allegedly authorizing the retention of these funds violated article VII, section 9(a), of the Constitution of Illinois. Count I of the complaint prayed that the defendants be directed to turn over the monies in question to the Illinois Department of Revenue. Count II prayed in the alternative that these monies be returned to the taxpayers from whom they were received.

Count II was dismissed on the motion of the plaintiff. The trial court entered judgment in favor of the plaintiff on count I, and an appeal by the defendants to the appellate court was transferred here under Rule 302(a) (58 Ill. 2d R. 302(a)).

The complaint alleged that the plaintiff paid Illinois income tax and other State taxes, and the suit was brought both on her own behalf and on behalf of all other persons similarly situated. The trial court determined that the suit could be properly maintained as a class action, and no question on that issue is raised here.

The Real Estate Transfer Tax Act was enacted in 1967 and became effective January 1, 1968. (1967 Ill. Laws 1716.) Section 3, which relates to the collection of the tax and the disposition of the proceeds, has been amended twice since the judgment below, as will be noted subsequently in this opinion. The present case is governed by the language of section 3 as it stood prior to those amendments. Its pertinent provisions are as follows: The Act imposes a tax on the transfer of title at the rate of 50 cents for each $500 of value of the real estate being conveyed. The tax is collected by the recorder of deeds and registrar of titles through the sale of revenue stamps, which must be purchased by the taxpayer before the deed can be accepted for recordation or registration. Revenue stamps are sold to the recorder by the Illinois Department of Revenue at the rate of 25 cents per $500 of value. The requisite number of stamps are then sold to each taxpayer at the rate of 50 cents per $500 of value. At all times material to this appeal section 3 provided: “The net proceeds from such sale by the Recorder of Deeds or Registrar of Titles shall be treated as a fee of his office.” The section then goes on to authorize these officials to use such proceeds for the purchase of additional stamps.

The term “net proceeds” in this context refers to the excess over the cost incurred by the recorder in purchase of stamps from the Department of Revenue. Thus, although the amount of the tax imposed and the amount paid by the taxpayer is 50 cents per each $500 of value, only one-half of the latter amount is paid over to the State. It is the disposition of the other half which is in dispute here.

Under section 1(b) of the transition schedule to the 1970 Constitution, article VII, section 9(a), became effective December 1, 1971. It provides:

“Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.”

The plaintiff contends that the monies in question constitute fees collected by the recorder, while the defendants characterize them as a legislatively mandated distribution of collected State tax revenues.

Although section 3 of the Act does not specify what disposition is to be made of the net proceeds, other than those drawn on to purchase additional stamps, and although the complaint alleges that the defendant Olsen “paid himself as a fee the net proceeds from the tax monies collected,” it must be noted that the plaintiff’s argument, as well as her naming the county treasurer as a defendant, proceed on the assumption that the net proceeds, except for the qualification mentioned above, are deposited in the general corporate account of the county. Thus no objection is made here that the recorder’s compensation is paid out of fees collected, in violation of the first sentence of section 9(a). The question, rather, is whether the funds retained by the county are “fees based on funds collected,” and therefore forbidden by the last sentence of section 9(a).

The defendants contend that a fee is traditionally a specific charge imposed for the rendition of a specific service, a familiar example being the fee charged for the recording of a deed, whereas here the sums retained by the county are a fixed percentage of the tax proceeds unrelated to any services rendered to the taxpayer.

This analysis leaves out of account, however, the legislative directive that the net proceeds be treated as a fee of the recorder’s office. At the time when the Act was adopted the validity of fees received by the recorder of deeds of Cook County was governed by artide X, section 9, of the Constitution of 1870, which provided that the recorder’s salary should be fixed by law, and that it should be paid “only out of the fees of the office actually collected” (Ill. Const. 1870, art. X, sec. 9). The section contained the added qualification that fees in excess of the amount of the salary “shall be paid into the county treasury.” (Ill. Const. 1870, art. X, sec. 9.) Like provisions regarding fees were contained in section 9 and in section 10 of article X with respect to the payment of other officers of Cook County as well as officers of other counties. (See City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 522.) Prior to the effective date of section 9(a) of article VII of the Constitution of 1970 there was therefore no necessity that the legislature designate the net proceeds received by the recorder of deeds as anything other than a fee. Decisions of this court dealing with the matter make it clear, moreover, that the collection by one governmental entity of a tax due to a different entity has been regarded as a fee imposed by the former, rather than as a distribution of tax revenues after they have been collected. See Flynn v. Kucharski (1970), 45 Ill. 2d 211, 218-20; Goldstein v. Rosewell (1976), 65 Ill. 2d 325, 327-29.

The defendants also call our attention to section 4.4 of “An Act to revise the law in relation to recorders” (Ill. Rev. Stat. 1977, ch. 115, par. 4.4), which became effective December 1, 1971 (1971 Ill. Laws 3292, 3294). Section 4.4 provides that the recorder “shall deposit in the office of the county treasurer monthly by the 10th day of the month following, all fee income.” (Ill. Rev. Stat. 1977, ch. 115, par. 4.4.) This section also permits the recorder to maintain special funds, including one for “excess earnings from the sale of revenue stamps to be maintained in a fund to be used for the purchase of additional stamps from the Illinois Department of Revenue.” (Ill. Rev. Stat. 1977, ch. 115, par. 4.4(c).) A companion provision was enacted with respect to county clerks, who in certain counties other than the County of Cook perform the functions of the recorder of deeds. Ill. Rev. Stat. 1977, ch. 35, par. 1.2d; Ill. Rev. Stat. 1977, ch. 115, par. 1.

The defendants urge that these amendments showed an intention on the part of the legislature to depart from whatever intention it may have held earlier to treat the net proceeds of the transfer tax as a fee. We find this argument strained. It may be conceded that the 1971 amendments resolved any question which might have been raised as to whether compensation was being paid to the recorder by way of fees in contravention of the first sentence of section 9(a) of article VII. As we have noted, that aspect of the tax is not involved in the present case. We do not agree, however, that the 1971 change showed any intention by the legislature to treat the net proceeds as a distribution of collected revenues to the county rather than as a fee. The critical language contained in section 3 of the Act was not changed, and while the amendments of 1971 specified that a portion of the net proceeds needed to purchase future stamps could be retained in a segregated fund, the remainder of the proceeds was left available for the general use of the county.

Each of the amendments contains the following provision: “This amendatory Act of 1971 does not apply to any county which is a home rule unit” (1971 Ill. Laws 3291, 3292; 1971 Ill. Laws 3292, 3294), and, as the plaintiff notes in passing, Cook County is such a unit. In view of the conclusion we have just expressed that section 4.4 is immaterial, we need not consider whether the quoted language could be construed as excluding Cook County from its operation. See City of Urbana v. Houser (1977), 67 Ill. 2d 268, 271-72.

The defendants also rely on an amendment to section 3 which became effective in August 1978, shortly after the trial court in the present case had declared that section unconstitutional. This amendment deleted the provision that the net proceeds from the sale of stamps by the recorder of deeds or registrar of titles should be treated “as a fee of his office,” and substituted a provision that the proceeds should be treated “as the distribution of the tax which is herein authorized to be collected.” Pub. Act 80- 1334.

We cannot accept the defendants’ invitation to read the 1978 amendment as showing the true intent of the original act. In addition to the difficulty of supposing that members of the General Assembly holding office in 1978 would be able to ascertain the intention of the 1967 Assembly, the normal presumption is that an amendment is intended to change the law as it formerly existed, rather than to reaffirm it, and the defendants offer no considerations which would overcome that presumption. (McLaughlin v. People (1949), 403 Ill. 493, 501; 1A. Sutherland, Statutes and Statutory Construction sec. 22.30 (4th ed. 1972).) The 1978 amendment, moreover, was itself superseded by the enactment of Public Act 81— 10 in 1979, which made major changes in the structure of the tax. We, of course, express no view on the construction or validity of either the 1978 or the 1979 amendments.

For the reasons given we hold that section 3 of the Real Estate Transfer Tax Act, as it stood when the transactions involved in this litigation took place, violated article VII, section 9(a), of the Constitution of Illinois, and we therefore affirm the judgment of the circuit court of Cook County.

Judgment affirmed.


text:
    (No. 51283.
    PEGGY WATTS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Glazier Sewing Factory, Division of Rothley, Inc., Appellee).

      Opinion filed September 19, 1979.

    MORAN, J., took no part.

      Wiedner & McAuliffe, of Chicago (John P. McAuliffe and Richard J. Leamy, Jr., of counsel), for appellant.
    Gordon, Schaefer, & Gordon, Ltd., of Chicago (Michael W. Schaefer, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Peggy Watts filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) for injuries she allegedly sustained on August 5, 1974, while employed by the respondent, Glazier Sewing Factory. An arbitrator awarded the claimant total and permanent disability compensation, but the Industrial Commission reversed, holding that the claimant “failed to prove that she sustained accidental injuries arising out of and in the course of the employment.” The Commission’s decision was confirmed by the circuit court of Lake County. The claimant has brought a direct appeal to this court under Rule 302(a). 58 Ill. 2d R. 302(a).

The claimant’s duties included the reversing of fur pile robes in order to expose the linings, which later would be sewed by other employees. The robes, each of which weighed about five pounds, were placed in a box on the floor near the employee’s work station.

The claimant testified that on the morning of August 5, 1974, as she was picking up a large bundle of robes from one of the boxes, she felt pain and numbness through her left arm and leg. Claimant stated she felt this pain as she was bending over to pick up the robes. The claimant informed her supervisor of the incident and her pain, but the supervisor, she said, told her only: “To hell with it, you’re not really hurt.”

She completed work and that evening consulted Dr. George Czopiwsky, who prescribed medication and advised her to take a week off. She returned to work one week later but continued to suffer, she testified, from a sharp and continuous pain throughout her left side.

The record shows that the claimant underwent extensive treatments, testing and medical examinations. She was hospitalized on four separate occasions and consulted at least 15 physicians. Treatments she received included physiotherapy, “manipulation” and massage, as well as acupuncture. The claimant also has taken various medications, including “vitamins and minerals,” muscle relax ants, antidepressant drugs and tranquilizers.

She testified that at no time has she been free of the pain in her left upper and lower extremities. Her condition is described as a functional paralysis and she is required to use a cane. The claimant also testified that she is able to perform only minor household chores and that she has not been able to seek employment.

There were no medical witnesses for either the claimant or the respondent, but numerous medical reports offered by the claimant"were received in evidence without objection. The reports show that none of the medical tests conducted has revealed any organic or neurological basis for the claimant’s disorder. Nor was there any evidence of injury which could explain the reason for her functional paralysis. The record reveals the medical consensus that the claimant’s disability has a psychosomatic origin. It is described as a conversion-type hysterical neurosis.

That was the conclusion of Dr. Benjamin Kesert, who examined the claimant at the respondent’s request about 2M> months after the claimed accident. In his report it is stated:

“Her present complaint is that her left arm and leg are paralyzed and that she has no feeling in these extremities. She uses a cane in her right hand to help her ambulate. Since the accident her lower back hurts her all the time.
* * *
The findings clearly show that Peggy’s paralysis is purely psychological and not due to any injury or organic disease.
Diagnosis:
P sychophysiological reaction, conversion type (hysteria) causing functional paralysis, left arm and leg. Recommendation:
Psychotherapy is necessary. Psychological tests to study the underlying reasons for the above condition.”

A finding by the Commission will be set aside only if it is contrary to the manifest weight of the evidence. (Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230; National Lock Co. v. Industrial Com. (1979), 75 Ill. 2d 259; Zimmerly Construction Co. v. Industrial Com. (1972), 50 Ill. 2d 342.) Recovery under the Workmen’s Compensation Act is not limited to disabilities from physical injury but may be allowed, under certain circumstances, for disability from psychological causes. (Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556; Spetyla v. Industrial Com. (1974), 59 Ill. 2d 1; City of Chicago v. Industrial Com. (1974), 59 Ill. 2d 284; Allis Chalmers Manufacturing Co. v. Industrial Com. (1974), 57 Ill. 2d 257. See also IB A. Larson, Workmen’s Compensation sec. 42.22 (1979).) We do not consider, however, that the finding of the Commission which reversed the arbitrator’s award was contrary to the manifest weight of the evidence.

As we have stated, there was no medical testimony connecting the claimant’s alleged injury and her disability. Nor was there any statement in the many medical reports that her condition was caused by any accident during her employment. The reports which were admitted on her own motion reveal her inconsistent versions as to how she sustained the claimed injury.

She testified she first experienced the pain while she was about to pick up a bundle of fur robes. In a medical report of Dr. George Czopiwsky, the claimant’s original physician, dated approximately two weeks after her claimed injury, it was noted that the patient stated she had sustained the injury two or three days prior to the time that the numbness and pain appeared and that these symptoms were felt in both arms and not just her left side. In the same report claimant is stated to have said, contrary to her testimony, that the injury was received when a box fell on her left shoulder. Also, a report prepared by Dr. Galo Tan, a neurologist, states that the injury was sustained when a bag she was lifting fell on her left shoulder. The report also indicates that the claimant was not hurt at the time of this incident but that the pain developed gradually.

The credibility of the claimant’s testimony was a question for the Industrial Commission (Scott v. Industrial Com. (1979), 76 Ill. 2d 183; Myszkowski v. Industrial Com. (1977), 68 Ill. 2d 205), and we cannot say the Commission’s findings that the claimant “failed to prove that she sustained accidental injuries arising out of and in the course of the employment” was contrary to the manifest weight of the evidence.

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

Judgment affirmed.

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


author: MR. JUSTICE RYAN

text:
    (No. 51422.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT LYKINS, Appellant.

      Opinion filed September 19, 1979.

      Theodore A. Gottfried, State Appellate Defender, and Richard J. Wilson, Deputy Defender, of Springfield, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Fred Montgomery, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The defendant, Robert Lykins, was convicted of conspiracy, armed robbery and murder by a jury in Sangamon County. The judge imposed a sentence of 70 to 150 years. In the appellate court the State confessed error in the entry of the judgment on the conspiracy charge. Section 8 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8 — 5) states that no person shall be convicted of both the inchoate and the principal offense, here armed robbery and a conspiracy to commit armed robbery. The appellate court reversed the conspiracy conviction but affirmed the conviction as to murder and armed robbery. (65 Ill. App. 3d 808.) In this court, as in the appellate court, Lykins has sought a review of his sentence. However, in this court Lykins, for the first time, has raised the issue of his trial counsel’s conflict of interest. This issue was not raised at any time in the trial court and was not raised in the appellate court.

In the early morning hours of June 28, 1976, Kevin Smith, a gas station attendant, was robbed, severely beaten, stabbed five times, and repeatedly slashed across the throat. Lykins, David Anderson and Rene Eickmann were questioned several hours after the robbery but were not arrested. A short time later Lykins and Eickmann called an Illinois Bureau of Investigation agent, admitted the early morning robbery, and turned themselves over to the police.

Lykins gave an unrecorded statement to the police on the morning of June 28, and he gave another statement before a stenographer in the afternoon. In those confessions, Lykins admitted to fully participating in the planning and execution of the robbery but argued that he did not believe the plan would be carried out and he did not think, once the robbery began, that the attendant would be injured. According to Lykins, he, Anderson and Eickmann intended only to knock Smith unconscious. Lykins noted that Anderson actually planned the robbery and Anderson attacked the attendant. Lykins saw Anderson brutally attack and slash Kevin Smith, and he shouted in vain for Anderson to stop. Lykins at no time attempted to physically restrain Anderson; he. did not call for help; and he shared in the proceeds of the robbery. After describing the crimes, Lykins helped the police to recover various items used in the commission of the crimes.

Smith died several months after the assault, and though disputed at the trial, there was evidence that he died as a result of a blow to the head rather than the knife wounds. Lykins, testifying on his own behalf, admitted to his participation and admitted that he had hit Smith, but he argued that he hit him out of jealousy when Smith and Eickmann went into the back room. According to Lykins’ testimony, there was no plan to seriously injure Smith. The oral and stenographic confessions were introduced, along with evidence that the robbery had been planned more than a week in advance. In addition, evidence of Lykins’ good character was introduced and testimony was given showing that Lykins had attended special high school classes. The jury found Lykins guilty of conspiracy, armed robbery and murder. Anderson was found guilty in a separate trial, and prior to Smith’s death Eickmann pleaded guilty to robbery. Only Lykins’ appeal is before this court.

The first issue raised in this court is an alleged per se conflict of interest of Lykins’ appointed trial attorney, Bruce Beeman. According to affidavits filed for the first time at the appellate court rehearing, partners of Beeman were special assistants to the Attorney General for condemnation matters. We hold that Lykins waived his right to raise the conflict issue by failing to raise it until the appellate court rehearing.

This court has repeatedly held that issues not raised at trial or in post-trial motions are waived. (People v. Precup (1978), 73 Ill. 2d 7, 16; People v. Amerman (1971), 50 Ill. 2d 196, 197.) This general rule applies to constitutional and nonconstitutional issues. (People v. Pickett (1973), 54 Ill. 2d 280, 282; People v. Long (1968), 39 Ill. 2d 40, 43.) The record indicates that no suggestion of a conflict of interest was made prior to the rehearing of the appeal in the appellate court, and under well-settled rules the right to raise the issue has been waived.

Recently, in People v. Fife (1979), 76 Ill. 2d 418, this court considered the question of the conflict which exists when a special assistant Attorney General is appointed to represent one charged with a crime. We held that unless the one charged with the crime is informed of the attorney’s affiliation with the Attorney General’s office and fails to effect a knowing and intelligent waiver, no prejudice need be shown by the defendant to warrant a reversal of his conviction and the granting of a new trial. In that case we also said that our holding is applicable to those cases in which a member of the same law firm has an affiliation with the Attorney General while another member represents a criminal defendant. (76 Ill. 2d 418, 424-25.) However, in Fife, we held that our holding would only be prospectively applied to cases involving prosecutions for offenses occurring subsequent to the filing of that opinion. (76 Ill. 2d 418, 425.) Thus not only has the defendant forfeited his right to raise the conflict issue in this court, but the prosective application of Fife makes the law announced therein inapplicable to this case.

The second issue raised by Lykins is his sentence of 70 to 150 years. Lykins argues that his degree of participation, his aid in the investigation, and the absence of any criminal record should have been taken into account and a lighter sentence should have been imposed. He notes that Anderson, the perpetrator, received a sentence of 75 to 100 years. In announcing the sentence, the judge explained:

“Mr. Lykins, the court has imposed this sentence because I am of the opinion, considering the nature of this crime, considering the inhumane manner in which this young man was killed, that you, sir, are not a fit subject ever to live in society again, and I have imposed this sentence to give the Parole Board of the State of Illinois present and future notice that this is this court’s attitude concerning this matter for whatever benefit it might be to them.
With this sentence, sir, as I understand the law, you will be eligible for parole within approximately twelve years.
But as I stated, Mr. Lykins, I just don’t think that you should be granted parole ever.” “[S] howing interest or bias on the part of a witness is also an accepted method of impeachment, and even in jurisdictions where evidence of arrest or indictment is not ordinarily admissible to impeach credibility generally, the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely.”

Though Supreme Court Rule 615(b)(4) (58 Ill. 2d R. 615(b)(4)) allows the reduction of sentences by a reviewing court, “It is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we might have imposed a different sentence had that function been delegated to us.” [People v. Waud (1977), 69 Ill. 2d 588, 596.) Absent an abuse of discretion, the sentence imposed by the trial court will not be altered. People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Bonner (1967), 37 Ill. 2d 553, 563.

In this case the brutality of the offense is shocking. A young, defenseless 16-year-old was robbed, beaten and brutally murdered. The trial judge is authorized to consider not only the defendant’s character but also the “nature and circumstances of the offense” in imposing a sentence. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(c)(1).) Admittedly, the sentence is severe; however, it is justified by the brutal nature of the crime. It should also be noted that under the law in effect at the time of the offense the defendant will be eligible for parole at the expiration of 20 years, less good time credit for good behavior. (Ill. Rev. Stat. 1975, ch. 38, par. 1003 — 3—3(a).) The trial court was aware of this in imposing the sentence and estimated that under the provision of this statute the defendant would be eligible for parole within approximately 12 years. It was the trial judge’s opinion that the defendant should not be paroled after serving only 12 years in the penitentiary. The severity of the sentence conveys to the parole authorities the judge’s opinion as to the serious nature of the offense. We do not consider the imposition of the sentence by the trial judge to have constituted a breach of discretion. Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 51454.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES EDDINGTON, Appellant.

      Opinion filed September 19, 1979.

      Richard J. Wilson, Deputy Defender, and David Bergschneider, Assistant Defender, of Springfield, for appellant.
    William J. Scott, Attorney General, and C. Joseph Cavanaugh, State’s Attorney, both of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Anita Donath, of Chicago, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Following a jury trial in Sangamon County, the defendant,-James Eddington, was convicted of the crime of solicitation to commit murder. The trial court sentenced Eddington to 20 to 40 years’ imprisonment. The appellate court affirmed this conviction and issued a certificate of importance. 64 Ill. App. 3d 650.

The certificate of importance related to the question of a conflict of interest of defense trial counsel who had as a partner a special assistant Attorney General. Other questions raised on this appeal are whether the trial court abused its discretion in restricting cross-examination of the State’s principal witness regarding pending charges against him and whether the trial court’s misstatement of the minimum sentence for the crime of solicitation to commit murder constituted harmless error under the circumstances present in this case.

Throughout the trial proceedings Eddington was represented by a lawyer who maintained a partnership with another lawyer. This second lawyer served as a special assistant Attorney General for condemnation cases. Trial counsel informed neither Eddington nor the judge of this partnership or of the possible conflict of interest caused by it. Defendant does not contend that he was prejudiced by this conflict but contends the right to adequate representation by counsel is so fundamental that he must be granted a new trial because of the mere existence of the conflict of interest.

The holding of this court in People v. Lykins (1979), 77 Ill. 2d 35, is dispositive of the conflict-of-interest issue. Here, as in Lykins, the issue was not raised in the trial court or in the appellate court. It must be considered that the defendant has waived his right to raise the issue in this court. Also, here, as in Lykins, the conflict-of-interest rule adopted in People v. Fife (1979), 76 Ill. 2d 418, cannot be applied because in Fife we held that the rule announced in that case would only be prospectively applied to cases involving prosecution for offenses occurring subsequent to the filing of that opinion.

At the trial of this case, the State’s principal witness, Gregory Fife, testified that Eddington offered him $1,000 if he would kill an Illinois Bureau of Investigation agent. The agent was to testify against Eddington in a separate drug case. Fife, an IB I informant, passively cooperated with Eddington in planning the murder and electrically recorded incriminating evidence against the defendant on a hidden tape recorder.

At Eddington’s trial the prosecutor filed a motion in limine to bar cross-examination of Fife regarding unrelated drug charges pending against Fife in another county. Out of the jury’s presence, the trial judge explored the issue by questioning both Fife and the prosecutor. The judge concluded that no leniency had been offered to Fife for his testimony and that none was expected by him.

The testimony the witness, Fife, was to give at trial related to matters that had occurred in April and May of 1975. The witness had given a statement concerning these matters, which statement had been transcribed and a copy furnished to defendant’s counsel. At the hearing on the motion in limine the defendant’s counsel had been given wide latitude in examining the witness with regard to his various transgressions of the law, one of which had resulted in a sentence of probation for two years on December 7, 1976. One of the conditions of probation was that the witness refrain from using cannabis. On August 24, 1977, the witness was arrested and charged with possession and delivery of cannabis in Menard County and was incarcerated in the county jail. He was still in jail on that charge, which was undisposed of, at the time of the trial in the defendant’s case in September 1977. The court, in ruling on the State’s motion in limine not to permit the witness to be cross-examined about the 1977 drug charge, in addition to concluding that no leniency had been offered and none was expected, considered the history of the defendant’s case and how this recent charge against the witness could affect his testimony. The court stated that the events about which the witness would testify occurred in 1975. Considering all the facts and circumstances, the fact that a statement of the witness had been previously taken, that the witness had previously testified at another hearing in the case, and that the cannabis charge was in a different court and had been filed only recently, the court was of the opinion that it was not reasonable to believe that the testimony of the witness would be influenced by any interest or bias in connection with the cannabis charge.

In People v. Mason (1963), 28 Ill. 2d 396, 400-01, this court stated:

This rule has been consistently followed by this court. See People v. Barr (1972), 51 Ill. 2d 50; People v. Norwood (1973), 54 Ill. 2d 253; People v. Galloway (1974), 59 Ill. 2d 158.

The appellate court in this case, relying on People v. Martin (2d Dist. 1978), 59 Ill. App. 3d 785, noted that at the hearing in limine there was no showing of any expectation of leniency regarding Fife’s drug charges in Menard County and also that the prosecutor had testified that no attempt would be made to obtain leniency for Fife. Therefore, it was not an abuse of discretion to bar the cross-examination of Fife concerning the pending drug charges.

We do not believe that these matters should be resolved solely in limine. In situations involving assessment of credibility, the jury should have a right to consider the pending charges, and, of course, the prosecution should have the right to show that no leniency was offered and that none was expected. The jury would then be able to consider any subliminal influences that could be exerted by the particular situation. In this case, however, following a lengthy hearing in limine, the trial court was satisfied that the testimony of the witness, which had been recorded prior to the cannabis charge that was then pending against the witness, could not have been affected by any bias or interest arising out of this later charge. In this case we think that the trial court did not abuse its discretion in allowing the State’s motion in limine to restrict the cross-examination of the witness, Fife.

Although the court had granted the motion to restrict the cross-examination of this witness, it, nevertheless, permitted defense counsel to extensively cross-examine Fife at the trial. The cross-examination showed that Fife had informed the IBI agent that he had taken a drug commonly known as “speed” and that no charges had been placed against him. Also, it was brought out that the witness was in jail at the time of the trial on a cannabis charge. This is the charge about which the court ruled the defendant could not cross-examine this witness. The defendant now contends that the response of the witness on qross-examination related to earlier drug charges. There is no substance to this contention. The witness plainly stated that at the time of the trial he was incarcerated on a cannabis charge and had been since his arrest on the “24th.” The date referred to in his testimony was the date of his arrest on August 24, 1977, as shown by the evidence at the in limine hearing. The jury was made aware of the fact that at the time the witness testified a criminal charge concerning cannabis was pending against him.

After the defendant was found guilty, the court considered matters in aggravation and mitigation and sentenced the defendant to a term of from 20 to 40 years. When he did so, however, the judge incorrectly stated that the statute provided a minimum 4-year sentence for solicitation to commit murder. In fact, the statute set no minimum term. (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 1(b).) The judge made this misstatement in the following context:

“[T] his isn’t the minimal kind of situation, that there are aggravating factors which are present in connection with this offense that call for a higher sentence than the minimum of four years prescribed by the statute.
The court further considers that those aggravating factors, those which have just been mentioned, coupled with the history and character of the defendant as exhibited through the pre-sentence investigation report and his prior convictions are such that it requires more — considerably more than the statutory minimum in connection in this case, and in view of the aggravating factors, the nature and circumstances of the offense, the history and character of the offense — the offender, the court is of the opinion that an appropriate sentence in this case is *** a period of twenty to forty years.”

A misstatement of the understanding of the minimum sentence by the trial judge necessitates a new sentencing hearing only when it appears that the mistaken belief of the judge arguably influenced the sentencing decision. In People v. Moore (1978), 69 Ill. 2d 520, for example, this court affirmed the appellate court’s remand for a new sentencing hearing when the trial judge imposed a 4-year minimum sentence term on a defendant, thinking that the law required a 4-year minimum term. Nothing like that occurred here. The judge here expressly stated that “this isn’t the minimal kind of situation.” The appellate court correctly noted in this case: “However, since the court actually imposed a minimum sentence of 20 years, and since there is no evidence that the trial judge used a 4-year minimum term as a reference point, we regard the court’s error as harmless.” (64 Ill. App. 3d 650, 655.) Although the trial court did refer, in his evaluation of the case for sentencing purposes, to his mistaken belief as to the minimum sentence required, there is no indication here that the 4-year minimum term was used by the trial judge as a reference point in fixing the minimum term of 20 years. Aggravating circumstances were numerous, and we hold, as did the appellate court, that the error was harmless. The judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51264.
    VICTORIA L. HEWITT et al., Appellees, v. ROBERT M. HEWITT, Appellant.

      Opinion filed September 19, 1979.

      Marshall J. Auerbach, Michael J. Rovell, Joan B. Gottschall, Don R. Sampen, and Robert T. Markowski (Jenner & Block, of Chicago, and Robert I. Auler, of Urbana, of counsel), for appellant.
    Burt Greaves, of Greaves, Lemer & Gadau, of Champaign, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The issue in this case is whether plaintiff Victoria Hewitt, whose complaint alleges she lived with defendant Robert Hewitt from 1960 to 1975 in an unmarried, family-like relationship to which three children have been born, may recover from him “an equal share of the profits and properties accumulated by the parties” during that period.

Plaintiff initially filed a complaint for divorce, but at a hearing on defendant’s motion to dismiss, admitted that no marriage ceremony had taken place and that the parties have never obtained a marriage license. In dismissing that complaint the trial court found that neither a ceremonial nor a common law marriage existed; that since defendant admitted the paternity of the minor children, plaintiff need not bring a separate action under the Paternity Act (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 51 et seq.) to have the question of child support determined; and directed plaintiff to make her complaint more definite as to the . nature of the property of which she was seeking division.

Plaintiff thereafter filed an amended complaint alleging the following bases for her claim: (1) that because defendant promised he would “share his life, his future, his earnings and his property” with her and all of defendant’s property resulted from the parties’ joint endeavors, plaintiff is entitled in equity to a one-half share; (2) that the conduct of the parties evinced an implied contract entitling plaintiff to one-half the property accumulated during their “family relationship”; (3) that because defendant fraudulently assured plaintiff she was his wife in order to secure her services, although he knew they were not legally married, defendant’s property should be impressed with a trust for plaintiff’s benefit; (4) that because plaintiff has relied to her detriment on defendant’s promises and devoted her entire life to him, defendant has been unjustly enriched.

The factual background alleged or testified to is that in June 1960, when she and defendant were students at Grinnell College in Iowa, plaintiff became pregnant; that defendant thereafter told her that they were husband and wife and would live as such, no formal ceremony being necessary, and that he would “share his life, his future, his earnings and his property” with her; that the parties immediately announced to their respective parents that they were married and thereafter held themselves out as husband and wife; that in reliance on defendant’s promises she devoted her efforts to his professional education and his establishment in the practice of pedodontia, obtaining financial assistance from her parents for this purpose; that she assisted defendant in his career with her own special skills and although she was given payroll checks for these services she placed them in a common fund; that defendant, who was without funds at the time of the marriage, as a result of her efforts now earns over $80,000 a year and has accumulated large amounts of property, owned either jointly with her or separately; that she has given him every assistance a wife and mother could give, including social activities designed to enhance his social and professional reputation.

The amended complaint was also dismissed, the trial court finding that Illinois law and public policy require such claims to be based on a valid marriage. The appellate court reversed, stating that because the parties had outwardly lived a conventional married life, plaintiff’s conduct had not “so affronted public policy that she should be denied any and all relief” (62 Ill. App. 3d 861, 869), and that plaintiff’s complaint stated a cause of action on an express oral contract. We granted leave to appeal. Defendant apparently does not contest his obligation to support the children, and that question is not before us.

The appellate court, in reversing, gave considerable weight to the fact that the parties had held themselves out as husband and wife for over 15 years. The court noted that they had lived “a most conventional, respectable and ordinary family life” (62 Ill. App. 3d 861, 863) that did not openly flout accepted standards, the “single flaw” being the lack of a valid marriage. Indeed the appellate court went so far as to say that the parties had “lived within the legitimate boundaries of a marriage and family relationship of a most conventional sort” (62 Ill. App. 3d 861, 864), an assertion which that court cannot have intended to be taken literally. Noting that the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) does not prohibit nonmarital cohabitation and that the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 8(a)) makes fornication an offense only if the behavior is open and notorious, the appellate court concluded that plaintiff should not be denied relief on public policy grounds.

In finding that plaintiff’s complaint stated a cause of action on an express oral contract, the appellate court adopted the reasoning of the California Supreme Court in the widely publicized case of Marvin v. Marvin (1976), 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815, quoting extensively therefrom. In Marvin, Michelle Trióla and defendant Lee Marvin lived together for 7 years pursuant to an alleged oral agreement that while “the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” (18 Cal. 3d 660, 666, 557 P.2d 106, 110, 134 Cal. Rptr. 815, 819.) In her complaint she alleged that, in reliance on this agreement, she gave up her career as a singer to devote herself full time to defendant as “companion, homemaker, housekeeper and cook.” (18 Cal. 3d 660, 666, 557 P.2d 106, 110, 134 Cal. Rptr. 815, 819.) In resolving her claim for one-half the property accumulated in defendant’s name during that period the California court held that “The courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services” and that “In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.” (18 Cal. 3d 660, 665, 557 P.2d 106, 110, 134 Cal. Rptr. 815, 819.) The court reached its conclusions because:

“In summary, we believe that the prevalence of nonmarital relationships in modem society and the social acceptance of them, marks this as a time when our courts should by no means apply the doctrine of the unlawfulness of the so-called meretricious relationship to the instant case. *** ***
The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many.” 18 Cal. 3d 660, 683-84, 557 P.2d 106, 122, 134 Cal. Rptr. 815, 831.

It is apparent that the Marvin court adopted a pure contract theory, under which, if the intent of the parties and the terms of their agreement are proved, the psuedoconventional family relationship which impressed the appellate court here is irrelevant; recovery may be had unless the implicit sexual relationship is made the explicit consideration for the agreement. In contrast, the appellate court here, as we understand its opinion, would apply contract principles only in a setting where the relationship of the parties outwardly resembled that of a traditional family. It seems apparent that the plaintiff in Marvin would not have been entitled to recover in our appellate court because of the absence of that outwardly appearing conventional family relationship.

The issue of whether property rights accrue to unmarried cohabitants can not, however, be regarded realistically as merely a problem in the law of express contracts. Plaintiff argues that because her action is founded on an express contract, her recovery would in no way imply that unmarried cohabitants acquire property rights merely by cohabitation and subsequent separation. However, the Marvin court expressly recognized and the appellate court here seems to agree that if common law principles of express contract govern express agreements between unmarried cohabitants, common law principles of implied contract, equitable relief and constructive trust must govern the parties ’ relations in the absence of such an agreement. (18 Cal. 3d 660, 678, 557 P.2d 106, 118, 134 Cal. Rptr. 815, 827; 62 Ill. App. 3d 861, 867-68.) In all probability the latter case will be much the more common, since it is unlikely that most couples who live together will enter into express agreements regulating their property rights. (Bruch, Property Rights of De Facto Spouses, Including Thoughts on the Value of Homemakers’ Services, 10 Earn. L.Q. 101, 102 (1976).) The increasing incidence of nonmarital cohabitation referred to in Marvin and the variety of legal remedies therein sanctioned seem certain to result in substantial amounts of litigation, in which, whatever the allegations regarding an oral contract, the proof will necessarily involve details of the parties’ living arrangements.

Apart, however, from the appellate court’s reliance upon Marvin to reach what appears to us to be a significantly different result, we believe there is a more fundamental problem. We are aware, of course, of the increasing judicial attention given the individual claims of unmarried cohabitants to jointly accumulated property, and the fact that the majority of courts considering the question have recognized an equitable or contractual basis for implementing the reasonable expectations of the parties unless sexual services were the explicit consideration. (See cases collected in Annot., 31 A.L.R.2d 1255 (1953) and A.L.R.2d Later Case Service supplementing vols. 25 to 31.) The issue of unmarried cohabitants’ mutual property rights, however, as we earlier noted, cannot appropriately be characterized solely in terms of contract law, nor is it limited to considerations of equity or fairness as between the parties to such relationships. There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships. Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage. Will the fact that legal rights closely resembling those arising from conventional marriages can be acquired by those who deliberately choose to enter into what have heretofore been commonly referred to as “illicit” or “meretricious” relationships encourage formation of such relationships and weaken marriage as the foundation of our family-based society? In the event of death shall the survivor have the status of a surviving spouse for purposes of inheritance, wrongful death actions, workmen’s compensation, etc.? And still more importantly: what of the children bom of such relationships? What are their support and inheritance rights and by what standards are custody questions resolved? What of the sociological and psychological effects upon them of that type of environment? Does not the recognition of legally enforceable property and custody rights emanating from nonmarital cohabitation in practical effect equate with the legalization of common law marriage — at least in the circumstances of this case? And, in summary, have the increasing numbers of unmarried cohabitants and changing mores of our society (Brunch, Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers’ Services, 10 Fam. L.Q. 101, 102-03 (1976); Nielson, In re Cary: A Judicial Recognition of Illicit Cohabitation, 25 Hastings L.J. 1226 (1974)) reached the point at which the general welfare of the citizens of this State is best served by a return to something resembling the judicially created common law marriage our legislature outlawed in 1905?

Illinois’ public policy regarding agreements such as the one alleged here was implemented long ago in Wallace v. Rappleye (1882), 103 Ill. 229, 249, where this court said: “An agreement in consideration of future illicit cohabitation between the plaintiffs is void.” This is the traditional rule, in force until recent years in all jurisdictions. (See, e.g., Gauthier v. Laing (1950), 96 N.H. 80, 70 A.2d 207; Grant v. Butt (1941), 198 S.C. 298, 17 S.E.2d 689.) Section 589 of the Restatement of Contracts (1932) states, “A bargain in whole or in part for or in consideration of illicit sexual intercourse or of a promise thereof is illegal.” See also 6A Corbin, Contracts sec. 1476 (1962), and cases cited therein.

It is true, of course, that cohabitation by the parties may not prevent them from forming valid contracts about independent matters, for which it is said the sexual relations do not form part of the consideration. (Restatement of Contracts secs. 589, 597 (1932); 6A Corbin, Contracts sec. 1476 (1962).) Those courts which allow recovery generally have relied on this principle to reduce the scope of the rule of illegality. Thus, California courts long prior to Marvin held that an express agreement to pool earnings is supported by independent consideration and is not invalidated by cohabitation of the parties, the agreements being regarded as simultaneous but separate. (See, e.g., Trutalli v Meraviglia (1932), 215 Cal. 698, 12 P.2d 430; see also Annot., 31 A.L.R.2d 1255 (1953), and cases cited therein.) More recently, several courts have reasoned that the rendition of housekeeping and homemaking services such as plaintiff alleges here could be regarded as the consideration for a separate contract between the parties, severable from the illegal contract founded on sexual relations. [Kozlowski v. Kozlowski (1979), 80 N.J. 378, 403 A.2d 902; Marvin v. Marvin (1976), 18 Cal. 3d 660, 670 n.5, 557 P.2d 106, 113 n.5, 134 Cal. Rptr. 815, 822 n.5; Tyranski v. Piggins (1973), 44 Mich. App. 570, 205 N.W.2d 595, 597; contra, Rehak v. Mathis (1977), 239 Ga. 541, 238 S.E.2d 81.) In Latham v. Latham (1976), 274 Or. 421, 547 P.2d 144, and Carlson v. Olson (Minn. 1977), 256 N.W.2d 249, on allegations similar to those in this case, the Minnesota Supreme Court adopted Marvin and the Oregon court expressly held that agreements in consideration of cohabitation were not void, stating:

“We are not validating an agreement in which the only or primary consideration is sexual intercourse. The agreement here contemplated all the burdens and amenities of married life.” 274 Or. 421, 427, 547 P.2d 144, 147.

The real thrust of plaintiff’s argument here is that we should abandon the rule of illegality because of certain changes in societal norms and attitudes. It is urged that social mores have changed radically in recent years, rendering this principle of law archaic. It is said that because there are so many unmarried cohabitants today the courts must confer a legal status on such relationships. This, of course, is the rationale underlying some of the decisions and commentaries. (See, e.g., Marvin v. Marvin (1976), 18 Cal. 3d 660, 683, 557 P.2d 106, 122, 134 Cal. Rptr. 815, 831; Beal v. Beal (1978), 282 Or. 115, 577 P.2d 507; Kay & Amyx, Marvin v. Marvin: Preserving the Options, 65 Cal. L. Rev. 937 (1977).) If this is to be the result, however, it would seem more candid to acknowledge the return of varying forms of common law marriage than to continue displaying the naivete we believe involved in the assertion that there are involved in these relationships contracts separate and independent from the sexual activity, and the assumption that those contracts would have been entered into or would continue without that activity.

Even if we were to assume some modification of the rule of illegality is appropriate, we return to the fundamental question earlier alluded to: If resolution of this issue rests ultimately on grounds of public policy, by what body should that policy be determined? Marvin, viewing the issue as governed solely by contract law, found judicial policy-making appropriate. Its decision was facilitated by California precedent and that State’s no-fault divorce law. In our view, however, the situation alleged here was not the kind of arm’s length bargain envisioned by traditional contract principles, but an intimate arrangement of a fundamentally different kind. The issue, realistically, is whether it is appropriate for this court to grant a legal status to a private arrangement substituting for the institution of marriage sanctioned by the State. The question whether change is needed in the law governing the rights of parties in this delicate area of marriage-like relationships involves evaluations of sociological data and alternatives we believe best suited to the superior investigative and fact-finding facilities of the legislative branch in the exercise of its traditional authority to declare public policy in the domestic relations field. (Strukoff v. Strukoff (1979), 76 Ill. 2d 53;Siegallv. Solomon (1960), 19 Ill. 2d 145.) That belief is reinforced by the fact that judicial recognition of mutual property rights between unmarried cohabitants would, in our opinion, clearly violate the policy of our recently enacted Illinois Marriage and Dissolution of Marriage Act. Although the Act does not specifically address the subject of nonmarital cohabitation, we think the legislative policy quite evident from the statutory scheme.

The Act provides:

“This Act shall be liberally construed and applied to promote its underlying purposes, which are to:
(1) provide adequate procedures for the solemnization and registration of marriage;
(2) strengthen and preserve the integrity of marriage and safeguard family relationships.” (Ill. Rev. Stat. 1977, ch. 40, par. 102.)

We cannot confidently say that judicial recognition of property rights between unmarried cohabitants will not make that alternative to marriage more attractive by allowing the parties to engage in such relationships with greater security. As one commentator has noted, it may make this alternative especially attractive to persons who seek a property arrangement that the law does not permit to marital partners. (Comment, 90 Harv. L. Rev. 1708, 1713 (1977).) This court, for example, has held void agreements releasing husbands from their obligation to support their wives. (Vock v. Vock (1937), 365 Ill. 432; VanKoten v. VanKoten (1926), 323 Ill. 323; see also Rhodes v. Rhodes (1967), 82 Ill. App. 2d 435, 225 N.E.2d 802; Restatement of Contracts sec. 587 (1932); Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 Cal. L. Rev. 1169, 1259-63 (1974).) In thus potentially enhancing the attractiveness of a private arrangement over marriage, we believe that the appellate court decision in this case contravenes the Act’s policy of strengthening and preserving the integrity of marriage.

The Act also provides: “Common law marriages contracted in this State after June 30, 1905 are invalid.” (Ill. Rev. Stat. 1977, ch. 40, par. 214.) The doctrine of common law marriage was a judicially sanctioned alternative to formal marriage designed to apply to cases like the one before us. In Port v. Port (1873), 70 Ill. 484, this court reasoned that because the statute governing marriage did not “prohibit or declare void a marriage not solemnized in accordance with its provisions, a marriage without observing the statutory regulations, if made according to the common law, will still be a valid marriage.” (70 Ill. 484, 486.) This court held that if the parties declared their present intent to take each other as husband and wife and thereafter did so a valid common law marriage existed. (Cartwright v. McGown (1887), 121 Ill. 388, 398.) Such marriages were legislatively abolished in 1905, presumably because of the problems earlier noted, and the above-quoted language expressly reaffirms that policy.

While the appellate court denied that its decision here served to rehabilitate the doctrine of common law marriage, we are not persuaded. Plaintiff’s allegations disclose a relationship that clearly would have constituted a valid common law marriage in this State prior to 1905. The parties expressly manifested their present intent to be husband and wife; immediately thereafter they assumed the marital status; and for many years they consistently held themselves out to their relatives and the public at large as husband and wife. Revealingly, the appellate court relied on the fact that the parties were, to the public, husband and wife in determining that the parties living arrangement did not flout Illinois public policy. It is of course true, as plaintiff argues, that unlike a common law spouse she would not have full marital rights in that she could not, for example, claim her statutory one-third share of defendant’s property on his death. The distinction appears unimpressive, however, if she can claim one-half of his property on a theory of express or implied contract.

Further, in enacting the Illinois Marriage and Dissolution of Marriage Act, our legislature considered and rejected the “no-fault” divorce concept that has been adopted in many other jurisdictions, including California. (See Uniform Marriage and Divorce Act secs. 302, 305.) Illinois appears to be one of three States retaining fault grounds for dissolution of marriage. (Ill. Rev. Stat. 1977, ch. 40, par. 401; Comment, Hewitt v. Hewitt, Contract Cohabitation and Equitable Expectations Relief for Meretricious Spouses, 12 J. Mar. J. Prac. & Proc. 435, 452-53 (1979).) Certainly a significantly stronger promarriage policy is manifest in that action, which appears to us to reaffirm the traditional doctrine that marriage is a civil contract between three parties — the husband, the wife and the State. (Johnson v. Johnson (1942), 381 Ill. 362; VanKoten v. VanKoten (1926), 323 Ill. 323.) The policy of the Act gives the State a strong continuing interest in the institution of marriage and prevents the marriage relation from becoming in effect a private contract terminable at will. This seems to us another indication that public policy disfavors private contractual alternatives to marriage.

Lastly, in enacting the Illinois Marriage and Dissolution of Marriage Act, the legislature adopted for the first time the civil law concept of the putative spouse. The Act provides that an unmarried person may acquire the rights of a legal spouse only if he goes through a marriage ceremony and cohabits with another in the good-faith belief that he is validly married. When he learns that the marriage is not valid his status as a putative spouse terminates; common law marriages are expressly excluded. (Ill. Rev. Stat. 1977, ch. 40, par. 305.) The legislature thus extended legal recognition to a class of nonmarital relationships, but only to the extent of a party’s good-faith belief in the existence of a valid marriage. Moreover, during the legislature’s deliberations on the Act Marvin was decided and received wide publicity. (See Note, 12 J. Mar. J. Prac. & Proc. 435, 450 (1979).) These circumstances in our opinion constitute a recent and unmistakeable legislative judgment disfavoring the grant of mutual property rights to knowingly unmarried cohabitants. We have found no case in which recovery has been allowed in the face of a legislative declaration as recently and clearly enacted as ours. Even if we disagreed with the wisdom of that judgment, it is not for us to overturn or erode it. Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 496-97.

Actually, however, the legislative judgment is in accord with the history of common law marriage in this country. “Despite its judicial acceptance in many states, the doctrine of common-law marriage is generally frowned on in this country, even in some of the states that have accepted it.” (52 Am. Jur. 2d 902 Marriage sec. 46 (1970).) Its origins, early history and problems are detailed in In re Estate of Soeder (1966), 7 Ohio App. 2d 271, 220 N.E.2d 547, where that court noted that some 30 States did not authorize common law marriage. Judicial criticism has been widespread even in States recognizing the relationship. (See, e.g., Baker v. Mitchell (1941), 143 Pa. Super. 50, 54, 17 A.2d 738, 741, “a fruitful source of perjury and fraud ***”; Sorensen v. Sorensen (1904), 68 Neb. 500, 100 N.W. 930.) “It tends to weaken the public estimate of the sanctity of the marriage relation. It puts in doubt the certainty of the rights of inheritance. It opens the door to false pretenses of marriage and the imposition on estates of suppositious heirs.” 7 Ohio App. 2d 271, 290, 220 N.E.2d 547, 561.

In our judgment the fault in the appellate court holding in this case is that its practical effect is the reinstatement of common law marriage, as we earlier indicated, for there is no doubt that the alleged facts would, if proved, establish such a marriage under our pre-1905 law. (Cartwright v. McGown (1887), 121 Ill. 388.) The concern of both the Marvin court and the appellate court on this score is manifest from the circumstance that both courts found it necessary to emphasize marital values (“the structure of society itself largely depends upon the institution of marriage ” (Marvin v. Marvin (1976), 18 Cal. 3d 660, 684, 557 P.2d 106, 122, 134 Cal. Rptr. 815, 831) and to deny any intent to “derogate from” (18 Cal. 3d 660, 684, 557 P.2d 106, 122, 134 Cal. Rptr. 815, 831) or “denigrate” (Hewitt v. Hewitt (1978), 62 Ill. App. 3d 861, 868) that institution. Commentators have expressed greater concern: “[T] he effect of these cases is to reinstitute common-law marriage in California after it has been abolished by the legislature.” (Clark, The New Marriage, Williamette L.J. 441, 449 (1976).) “[Hewitt] is, if not a direct resurrection of common-law marriage contract principles, at least a large step in that direction.” Reiland, Hewitt v. Hewitt: Middle America, Marvin and Common-Law Marriage, 60 Chi. B. Rec. 84, 88-90 (1978).

We do not intend to suggest that plaintiff’s claims are totally devoid of merit. Rather, we believe that our statement in Mogged v. Mogged (1973), 55 Ill. 2d 221, 225, made in deciding whether to abolish a judicially created defense to divorce, is appropriate here:

“Whether or not the defense of recrimination should be abolished or modified in Illinois is a question involving complex public-policy considerations as to which compelling arguments may be made on both sides. For the reasons stated hereafter, we believe that these questions are appropriately within the province of the legislature, and that, if there is to be a change in the law of this State on this matter, it is for the legislature and not the courts to bring about that change.”

We accordingly hold that plaintiff’s claims are unenforceable for the reason that they contravene the public policy, implicit in the statutory scheme of the Illinois Marriage and Dissolution of Marriage Act, disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants. The judgment of the appellate court is reversed and the judgment of the circuit court of Champaign County is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 51375.
    JOHNSON OUTBOARDS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kenneth Degeneffe, Appellee).

      Opinion filed September 19, 1979.

      Gifford, Detuno & Gifford, of Chicago (Joseph A. Garofalo and James F. Gorman, of counsel), for appellant.
    May, Decker & Associates, Ltd., of Waukegan (Gerald G. Jutila, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that claimant, Kenneth Degeneffe, had suffered a back injury arising out of and in the course of employment. On review, after admitting medical records, the Industrial Commission affirmed the arbitrator’s decision and ordered that it stand as the decision of the Industrial Commission. On certiorari, the circuit court of Lake County confirmed the decision of the Commission. The respondent employer appealed pursuant to Rule 302(a). 58 Ill. 2d R. 302(a).

Respondent contends that the claimant did not establish by a preponderance of the evidence that he suffered an injury arising out of and in the course of his employment. Also, respondent contends that the award of the Industrial Commission is against the manifest weight of the evidence.

The claimant was the only witness in his behalf. He testified that on Saturday, May 29, 1976, he was working as a die cast maker. At 2 p.m., an hour before his shift was to end, he was removing bolts from a large die with a heavy wrench and a long pipe when he “felt a twitch” in his back. Claimant approached his supervisor, Frank Staczyk, and told him about the twitch. The claimant finished working the hour remaining on his shift and went home. The next day, Sunday, May 30, 1976, he felt pain in his lower back and right leg. He called his doctor on Memorial Day, May 31, 1976, and made an appointment to see the doctor the following day at St. Therese’s Hospital. At the hospital the claimant saw and spoke to an assistant supervisor of respondent, Tony Zupansic. Zupansic testified that the claimant was limping and appeared to be in pain. The claimant was admitted to the hospital on June 1, 1976.

On either June 3 or June 4, the claimant called Staczyk on the telephone to inform him that he would not be able to work for the next two months. Staczyk testified that he made a note of this conversation and that it was never mentioned that the injury was work related. The claimant was treated for a herniated intervertebral disc and discharged from the hospital on June 12, 1976.

On June 15, 1976, claimant filled out a “Weekly Income Claim” in order to receive weekly insurance benefits from respondent’s nonoccupational group insurance carrier. In that form the claimant responded to the question “When did you become wholly unable to work?” with “5/31/76,” “2:00” p.m. As to whether the disability was due to accident or sickness, the claimant responded with a question mark. The claimant did not answer a question which asked whether the disability arose out of his employment.

On August 9, 1976, the claimant returned to work. On that day he signed an “Employee’s Report of Accident” form. In it, he stated that he suffered back injuries on May 29, 1976, at 2 p.m. in the tool room while taking an intermediate die apart.

The respondent contends that the claimant did not prove that his injury arose out of and in the course of employment by a preponderance of the evidence. Respondent argues that Staczyk’s testimony and the answers given by the claimant on the two accident forms substantially rebut the claimant’s case.

The burden is upon the claimant to prove by a preponderance of credible evidence the elements of his claim, particularly the prerequisite that the injury complained of arose out of and in the course of employment. (Illinois Institute of Technology v. Industrial Com. (1977), 68 Ill. 2d 236, 245-46.) The issue of whether an injury arose out of and in the course of employment is for the Commission to decide. (Humphrey v. Industrial Com. (1979), 76 Ill. 2d 333, 336.) The court will not reject the finding of the Commission that there was an accidental injury which arose out of and in the course of employment even though different inferences might also be reasonably drawn, unless it is against the manifest weight of the evidence. (National Lock Co. v. Industrial Com. (1979), 75 Ill. 2d 259, 264.) The words “arising out of” refer to the causal connection between the employment and the accidental injury while the term “in the course of” refers to the time, place and circumstances under which the accident occurred. Lynch Special Services v. Industrial Com. (1979), 76 Ill. 2d 81, 86.

The Commission found as a fact that the claimant suffered a back injury arising out of an accident which occurred on May 29, 1976, while the claimant was performing work for the respondent. The Commission based its finding on the testimony of the claimant and the medical records admitted into evidence which showed that the claimant had been treated for a herniated intervertebral disc shortly after the accident. While there is some conflict between the testimony of claimant and Staczyk, and some ambiguity in the responses to some questions, those are questions of fact to be resolved by the Commission. (Walden v. Industrial Com. (1979), 76 Ill. 2d 193, 196.) In any case we do not agree, as respondent suggests, that the question asking when the claimant became “wholly unable” to work is equivalent to a question which asks when the claimant was injured.

It is the peculiar province of the Commission to determine the credibility of witnesses (Scott v. Industrial Com. (1979), 76 Ill. 2d 183, 185), to decide questions of fact and to draw reasonable inferences (Thrall Car Manufacturing Co. v. Industrial Com. (1976), 64 Ill. 2d 459, 463). The court will not substitute its judgment for that of the Industrial Commission. (J. J. Grady Co. v. Industrial Com. (1970), 46 Ill. 2d 471, 473.) The decision of the Commission has support in the record and is not against the manifest weight of the evidence. We therefore affirm the judgment of the circuit court of Lake County.

Judgment affirmed.


text:
    (No. 51519.
    GEORGE PHELPS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Crescent Drilling Co., Appellee).

      Opinion filed September 19, 1979.

      Harris & Lambert, of Marion, for appellant.
    Keefe & De Pauli, P.C., of East St. Louis, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Claimant, George Phelps, injured either his left or right knee or both on June 19, 1974, when he fell and struck it or them on a rotary table while in the course of his employment as a “roughnecker,” or driller helper in an oil field, with Crescent Drilling Co., respondent. On March 27, 1975, claimant filed his application for adjustment of claim, alleging he “slipped on rotary rig and left knee hit rotary table.” The arbitrator, finding the injury occurred in the course of employment, awarded claimant $80.90 a week for 40 weeks for the permanent “loss of use of the left leg to the extent of 20%,” plus “$80.00 for necessary first aid, medical and hospital services.” The Industrial Commission found claimant sustained injuries in the course of employment and allowed the award of $80, but held claimant sustained no permanent disability. The circuit court of White County confirmed. The issue is whether the decision of the Commission was against the manifest weight of the evidence.

Claimant testified both his knees hit the rotary table though the left knee hit it with greater force, that his left knee has frequently “locked up” since, and he never had problems with his right knee. He also testified Crescent replaced him, but he said he found another job within a week. Claimant, who could not read or write well, denied that, when having the forms filled out, he ever indicated injury to his right knee. On behalf of claimant, the arbitrator admitted the evidence deposition of Dr. Edward Brundick, who examined claimant in March of 1975, concluded he had suffered permanent damage to his left knee, recommended surgery to claimant, who declined it, and otherwise did not treat claimant’s left knee. Dr. Brundick also stated claimant’s left knee had no atrophy and no limitation of movement^Marjorie Slack, secretary and payroll clerk for Crescent, testified that she received a report from the driller, claimant’s immediate boss, that claimant bumped his right knee, and that she mailed to claimant a report, indicating injury to the right knee, which was later returned to Crescent. Exhibit copies of these reports in the record confirm this. On behalf of Crescent, the arbitrator admitted the evidence deposition of Dr. Phillip Boren, who treated claimant for injury to his right knee the day after the accident, examined him a week later and released him for work, and examined him for the last time in March 1975 when claimant complained of pain in his left knee. Dr. Boren then referred claimant to Dr. Brundick.

The Commission is charged with the function of determining facts, including disputed facts, drawing reasonable inferences and conclusions, judging the credibility of witnesses, and deciding the extent of disability. A reviewing court will not reverse that decision unless it is contrary to the manifest weight of the evidence. (Owens-Illinois Glass Co. v. Industrial Com. (1968), 39 Ill. 2d 312, 316. Accord, e.g., Cebulski v. Industrial Com. (1971), 48 Ill. 2d 289, 294; Ford Motor Co. v. Industrial Com. (1976), 62 Ill. 2d 337, 341-42.) We cannot say that is the situation here after a review of the record. Quick v. Industrial Com. (1972), 53 Ill. 2d 46, cited by claimant, does not benefit him because here the evidence supports the Commission’s findings that claimant injured himself (even though it failed to specify which knee) but that it was not permanent. Claimant admitted bumping both knees but the evidence was conflicting about which, if either, suffered greater injury and whether there was permanent damage. This was for the Commission to resolve.

For these reasons, the judgment of the circuit court of White County is affirmed.

Judgment affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51623.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CRAIG CARRARO et al., Appellants.

      Opinion filed September 19, 1979.

      W. Joseph Gibbs, of Springfield (Edward R. Green, of counsel), for appellant Craig Carraro.
    Richard J. Wilson, Deputy Defender, and Jeff Justice and Karen Munoz, Assistant Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant William Gray.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and James A. Devine, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendants, Craig Carraro and William Gray, were convicted of battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 3(a)(1)) and criminal damage to property in excess of $150 (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 1) following a bench trial in the circuit court of Sangamon County. The appellate court affirmed their convictions (67 Ill. App. 3d 81) and issued a certificate of importance to this court under our Rule 316 (58 Ill. 2d R. 316).

Two issues are presented for review. The first is whether a conflict of interest existed which requires a reversal of defendants’ convictions, solely because defense counsel was associated in the practice of law with two special assistant Attorneys General who represented the State of Illinois in civil condemnation matters. Defendants contend they had no knowledge of their attorney’s association with the special assistant Attorneys General at the time of trial and did not knowingly consent to such representation.

In People v. Fife (1979), 76 Ill. 2d 418, 424, this court held that “a conflict of interest exists where defense counsel is a special assistant Attorney General, even though limited to specified noncriminal work, and his client in a criminal case is inadequately informed of the affiliation with the Attorney General and fails to effect a knowing and intelligent waiver. In such circumstances, actual prejudice need not be shown.” (Emphasis in original.) Fife stated further that “there is no question that our holding is applicable to those cases in which a member of the same law firm has an affiliation with the Attorney General while another member represents a criminal defendant. See People v. Stoval (1968), 40 Ill. 2d 109. Cf. Barliant v. Follett Corp. (1978), 74 Ill. 2d 226, 237-38.” (76 Ill. 2d 418, 425.) Although Fife was applied to the defendant there, by its terms it otherwise applies prospectively only to offenses occurring subsequent to the filing of that opinion. It therefore can provide no basis for relief to Carraro and Gray since the crimes with which they were charged occurred before the decision in Fife.

We turn now to the second issue presented to us here. Defendants were charged with causing damage in excess of $150 to a 1970 Plymouth Duster car in violation of section 21 — 1 of the Criminal Code of 1961, which provides:

“Any of the following acts *** when the damage to property exceeds $150 is a Class 4 felony;
(a) Knowingly damages any property of another without his consent.” (Ill. Rev. Stat. 1977, ch. 38, par. 21-1.)

The owner of the car testified without objection that his insurance company estimated the damage to his car at $391. He further testified, over objection on relevancy grounds, that the bill for fixing the car was “$391 and some odd cents.” The only other evidence in the record to which defendants point concerning the amount of damage is testimony by defendant Gray that he had worked on cars and could have repaired the victim’s car for less than $50. Defendants ask us to determine whether evidence consisting solely of testimony concerning the cost of repairs is sufficient proof of damage to sustain their convictions for causing over $150 damage to the Plymouth Duster.

In this matter of first impression, we agree with the appellate court’s determination that evidence of cost of repairs is sufficient to sustain defendants’ convictions. The criminal damage to property statute does not establish the nature of the proof the State is required to adduce to establish damage in excess of $150. However, the appellate court properly sought and found guidance in civil damage cases since, in both the civil and criminal contexts, the trier of fact must determine the amount of damage attributable to the defendant. We note, however, that the analogy is not complete since, in criminal cases, the State need not prove the exact amount of damage inflicted in order to assure full compensation to an injured plaintiff; it need only prove the minimum amount of damage necessary to justify a felony conviction and commensurate punishment.

It has often been held in civil cases that the reasonable cost of repairs is one proper measure of damage to personal property where it is repairable. (See Byalos v. Matheson (1927), 328 Ill. 269, 271-72; Lucas v. Bowman Dairy Co. (1964), 50 Ill. App. 2d 413, 416; Santiemmo v. Days Transfer, Inc. (1956), 9 Ill. App. 2d 487, 502; Fowler, Loss of Earnings and Property Damage, 1956 U. Ill. L.F. 453, 460-61.) Furthermore, other jurisidictions, in interpreting their equivalents of our criminal damage to property statute, have concluded that the cost of repairs necessitated by a defendant’s conduct is an accurate indication of the damage suffered by the victim and is therefore a proper method by which to determine the defendant’s criminal responsibility. See Nichols v. United States (D.C. App. 1975), 343 A.2d 336, 342; Crawley v. State (Tex. Crim. App. 1974), 513 S.W.2d 62, 65; Wise v. State (Tex. Civ. App. 1973), 494 S.W.2d 921, 924.

Neither the defendants nor the State introduced evidence of an alternate measure of damage. We therefore need not evaluate the propriety of any such measure. Moreover, we perceive no constitutional difficulty in placing the burden on the defendant of going forward with evidence of a different measure of damage in order to raise the issue that an alternate measure should be applied to mitigate the amount of damage established by the State through evidence of cost of repairs. Cf. Mullaney v. Wilbur (1975), 421 U.S. 684, 701 n.28, 44 L. Ed. 2d 508, 521 n.28, 95 S. Ct. 1881, 1891 n.28; see also Patterson v. New York (1977), 432 U.S. 197, 207, 53 L. Ed. 2d 281, 290, 97 S. Ct. 2319, 2325.

We also agree with the appellate court’s determination that defendant Carrara’s objection to the relevance of the car owner’s testimony regarding what he paid for repairs is groundless in light of the holding that the cost of repairs is a proper measure of damages. (See Byalos v. Matheson (1927), 328 Ill. 269, 272.) In addition, the record supports the appellate court’s conclusion that defendant Carraro failed to object to the testimony concerning the insurance company’s estimate of the cost of repairs and thus failed to preserve the issue for review (People v. Akis (1976), 63 Ill. 2d 296, 299; People v. Trefonas (1956), 9 Ill. 2d 92, 98-99). Defense counsel merely stated, sometime after the evidence was introduced, that he would have objected had he had time.

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

Judgment affirmed.