author: JUSTICE UNDERWOOD JUSTICE MORAN,

text:
    (No. 55310.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GREGORY DIXON, Appellee.

      Opinion filed June 18, 1982.

      MORAN and GOLDENHERSH, JJ., concurring in part and dissenting in part.
    Tyrone C. Fahner, Attorney General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Martin P. Moltz, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Mary Robinson, Deputy Defender, and David S. Morris, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Following a joint bench and jury trial (jury as to defendant) of defendant and three codefendants in the circuit court of Du Page County, the defendant, Gregory Dixon, was convicted of armed violence, aggravated battery, mob action, and disorderly conduct. He was sentenced to concurrent terms of four years’ imprisonment on the armed-violence and aggravated-battery convictions. The trial court imposed no sentence, however, on the mob-violence and disorderly-conduct convictions, holding that they “merged” into the other two offenses. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23), reversed defendant’s armed-violence conviction on the basis of our decision in People v. Haron (1981), 85 Ill. 2d 261, affirmed the aggravated-battery conviction, and refused to remand for sentencing on the two convictions upon which no sentence had been imposed. (96 Ill. App. 3d 1201.) We allowed the State’s petition for leave to appeal. No question is raised as to the propriety of the reversal of the armed-violence conviction.

The charges in question arose from a violent altercation between several inmates in Tier I East of the Du-Page County jail. Two of the State’s witnesses, who were deputy sheriffs, testified to seeing defendant and at least one codefendant repeatedly strike another inmate, Michael Mastro, with wooden broom or mop handles as 12 to 14 other persons congregated nearby. Mastro was treated at the Central Du Page Hospital for multiple abrasions and contusions and a groin injury. Defendant presented on his behalf a codefendant, George Hopkins, for the purpose of showing self-defense. Hopkins testified that there was considerable racial tension and hostility in the jail which precipitated the fight. He stated that on the day in question he initially observed defendant and Mastro “slamming sticks at each other.” When he entered the hall, Mastro then proceeded to strike him, at which point, he stated, defendant intervened to assist him.

Defendant contends that improper remarks by the prosecutor during closing arguments deprived him of a fair trial. Specifically, it is argued that the prosecutor commented on defendant’s failure to testify. The complained-of remarks were made in rebuttal and in response to defense counsel’s argument. Defense counsel had recounted the testimony of George Hopkins regarding racial tension and previous confrontations in the jail tier between the blacks and the whites and advised the jury to “keep in mind what is going on in Greg Dixon’s mind.” In response, the prosecutor stated:

“You also heard [defense counsel] tell you during his closing argument to keep in mind what was happening in Greg Dixon’s mind about this racial fear and so forth.
Do you know what was happening in Gregory Dixon’s mind? Did you hear any testimony whatsoever of what was going on in Gregory Dixon’s mind?”

The trial judge sustained defense counsel’s objection. Defendant argues that this comment was a direct, unambiguous reference to his decision not to testify. We do not agree.

The appropriate test for determining whether a defendant’s right to remain silent has been violated is whether “the reference [was] intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify.” (People v. Hopkins (1972), 52 Ill. 2d 1, 6; People v. Mentola (1971), 47 Ill. 2d 579, 582; People v. Mills (1968), 40 Ill. 2d 4, 8; People v. Wollenberg (1967), 37 Ill. 2d 480, 488.) The prosecutor may comment on the uncontradicted nature of the State’s case (People v. Skorusa (1973), 55 Ill. 2d 577, 584; People v. Norman (1963), 28 Ill. 2d 77, 81), and, where motivated by a purpose of demonstrating the absence of any evidentiary basis for defense counsel’s argument rather than a purpose of calling attention to the fact that defendant had not testified, such argument is permissible (People v. Jones (1970), 47 Ill. 2d 66, 67-70). Moreover, a defendant cannot ordinarily claim error where the prosecutor’s remarks are in reply to and may be said to have been invited by defense counsel’s argument. (People v. Vriner (1978), 74 Ill. 2d 329, 344, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858; People v. Zuniga (1973), 53 Ill. 2d 550, 558; People v. Bey (1972), 51 Ill. 2d 262, 266.) We believe that the prosecutor’s comment here, in the context in which it was made, was proper rebuttal invited by defense counsel’s argument and was not made for the purpose of calling attention to the defendant’s failure to testify. (People v. Bey (1972), 51 Ill. 2d 262, 266; see also United States v. Bright (5th Cir. 1980), 630 F.2d 804, 828; Sanchez v. Heggie (10th Cir. 1976), 531 F.2d 964, 966-67, cert. denied (1976), 429 U.S. 849, 50 L. Ed. 2d 122, 97 S. Ct. 135.) We note, too, that the court instructed the jury pursuant to defense counsel’s request that “the fact that a defendant did not testify should not be considered by you in any way in arriving at your verdict.” In our judgment the prosecutor’s invited remarks in these circumstances did not deprive defendant of a fair trial. People v. Bey (1972), 51 Ill. 2d 262, 266-67; see also United States v. Reicin (7th Cir. 1974), 497 F.2d 563, 572.

The State urges that the appellate court should have remanded the cause for the imposition of sentence on either defendant’s mob-action or disorderly-conduct conviction. The jury was instructed on disorderly conduct as a lesser included offense of mob action, and the State concedes that defendant may not be sentenced concurrently for both crimes. The defendant argues, however, that the appellate court is without jurisdiction to entertain an appeal by the State from a nonfinal order where the defendant has not raised any issue concerning its propriety. We note that there is a conflict in the appellate court on this issue. Compare People v. Gum (4th Dist. 1980), 85 Ill. App. 3d 298, and People v. Dixon (2d Dist. 1981), 96 Ill. App. 3d 1201 (Rule 23 order), with People v. Riley (1st Dist. 1980), 89 Ill. App. 3d 438, and People v. Dean (5th Dist. 1978), 61 Ill. App. 3d 612.

We agree that the final step in a criminal judgment is the sentence (In re J. N. (1982), 91 Ill. 2d 122; People v. Allen (1978), 71 Ill. 2d 378, 381), and that in its absence an appeal ordinarily cannot be entertained because the judgment is not final (People v. Lilly (1974), 56 Ill. 2d 493, 496; People ex rel. Filkin v. Flessner (1971), 48 Ill. 2d 54, 56). In cases somewhat similar to this, however, the absence of a sentence has not been thought to preclude action by the reviewing court. In People v. Lilly (1974), 56 Ill. 2d 493, the defendant had been found guilty of rape and indecent liberties with the same victim based upon a single act. The trial judge had entered judgment on both verdicts but sentenced defendant only on the rape conviction. On appeal, the defendant argued that his sentence was improper and that the trial court erred in entering a judgment of conviction on the indecent-liberties charge. This court agreed that there could be but one conviction where both charges were predicated on a single act and vacated the indecent-liberties conviction, holding that there was no jurisdictional bar to vacating the judgment despite its nonfinal character because the case was properly before the court on appeal with regard to defendant’s rape conviction. 56 Ill. 2d 493, 496.

Following Lilly, in People v. Scott (1977), 69 Ill. 2d 85, this court held that the appellate court had authority to remand for the imposition of sentence on defendant’s aggravated-kidnaping conviction where defendant had appealed that conviction seeking its reversal. The court noted that “Rule 615(b) specifically authorizes the reviewing court to modify the judgment or order from which the appeal is taken,” and held that “in ordering the imposition of a sentence on the conviction on which no sentence had previously been imposed the appellate court did not increase defendant’s punishment.” (69 Ill. 2d 85, 88.) In so holding, the court rejected the defendant’s contention that such action expanded the State’s right to appeal beyond that provided for in our rules (see 58 Ill. 2d R. 604), pointing out that the issue before it was not whether the State could appeal the refusal to impose sentence, for it was the defendant who had appealed. While those cases do not resolve the issue of the State’s right to seek a remand here, they do indicate that the absence of sentence on one of two or more defendant-appealed convictions is not a jurisdictional defect.

The issue here differs in that the defendant has not appealed from the mob-action and disorderly-conduct convictions. Because he did not appeal those convictions, defendant urges that remanding for the imposition of sentence would effectively broaden the right of the State to appeal. We do not agree. The situation before us is an anomalous one in that the trial judge’s failure to impose sentence on defendant’s convictions for mob violence and disorderly conduct stemmed from his belief that they merged into the other two offenses upon which he did impose sentence. The armed-violence, aggravated-battery, mob-action, and disorderly-conduct charges upon which defendant was convicted in a single trial all arose from a series of separate but closely related acts. Our Rule 615(b)(2) (73 Ill. 2d R. 615(b)(2)) provides:

“(b) Powers of the Reviewing Court. On appeal the reviewing court may:
(2) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken.”

Since the appeal was properly before the appellate court with regard to defendant’s convictions for armed violence and aggravated battery, and the failure to impose sentences upon the two unappealed convictions had been intimately related to and “dependent upon” the appealed convictions within the meaning of Rule 615(bX2), we believe that court was authorized to remand the cause for imposition of sentence. Any other interpretation of the rule could have mischievous consequences. If, for example, the appellate court had vacated the armed-violence and aggravated-battery convictions for reasons inapplicable to the mob-action and disorderly-conduct judgments, and could not remand for imposition of sentence on the latter, it is conceivable that the crimes could go unpunished. We accordingly conclude that the appellate court could properly have remanded for sentence here.

Defendant also argues that even if the appellate court had such authority, a remand is inappropriate because he was improperly convicted of mob action. The section under which he was convicted provides that mob action consists of “[t]he use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law.” (Ill. Rev. Stat. 1979, ch. 38, par. 25— l(aXl).) (The jury further found that as a participant in a mob action defendant violently inflicted injury on another person which enhanced the offense to a felony under subsection (c).) Defendant urges, however, that a disturbance of the “public peace” cannot occur within the confines of a jail.

Recently, in construing our disorderly conduct statute, this court rejected the argument that, in order to provoke a breach of the peace, an act must be performed in public view. (People v. Davis (1980), 82 Ill. 2d 534, 538.) There the conduct giving rise to the charge occurred in a private home, and the court specifically rejected as “devoid of merit” the contention that the acts must occur in public view, and quoted the committee comment on the statutory purpose that “[n]o attempt has been made to limit the scope of the article to public acts.” 82 Ill. 2d 534, 538.

Numerous decisions interpreting riot statutes which require a “disturbance of the public peace” or a “public disturbance” have reached the same conclusion. (E.g., United States v. Bridgeman (D.C. Cir. 1975), 523 F.2d 1099, and cases cited therein; Commonwealth v. Zwierzelewski (1955), 177 Pa. Super. 141, 110 A.2d 757; see also McClelland v. State (1968), 4 Md. App. 18, 240 A.2d 769.) Further, the committee comments accompanying the mob-action statute support this holding. Subsection (1), under which defendant was convicted, incorporates the offenses under the prior law of rout, riot and affray (Ill. Ann. Stat., ch. 38, par. 25 — 1, Committee Comments, at 140 (SmithHurd 1977)), and under the prior law neither rout nor riot required that a disorder occur in a public place (Ill. Rev. Stat. 1959, ch. 38, par. 503 (rout), par. 504 (riot)).

Defendant’s final contention is that under People v. King (1977), 66 Ill. 2d 551, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, a remand for sentencing is improper because his convictions for aggravated battery, mob action, and disorderly conduct were predicated upon a single act. While he essentially concedes that the evidence disclosed that he repeatedly struck Mastro with a club, he argues that the term “act,” as used in King, was intended to encompass a continuous act such as a beating, where there is no change in the nature or severity of the act. This argument overlooks the fact that the court in King specifically defined the term “act” and also abandoned the “independent motivation” test for determining whether multiple convictions and concurrent sentences could stand.

An “act,” as defined in King, is “any overt or outward manifestation which will support a different offense.” (66 Ill. 2d 551, 566.) As long as there are multiple acts, their interrelationship does not preclude multiple convictions and the imposition of concurrent sentences for separate offenses none of which are by definition lesser included offenses. (People v. Myers (1981), 85 Ill. 2d 281, 288; People v. King (1977), 66 Ill. 2d 551, 566.) Here the evidence disclosed that defendant and a codefendant struck Mastro with clubs several times. Indeed one of the deputy sheriffs testified that he observed defendant strike Mastro four or five times after he had arrived and the beating was already in progress. Thus, the separate blows, even though closely related, were not one physical act (People v. Myers (1981), 85 Ill. 2d 281, 289; see also People v. Vriner (1978), 74 Ill. 2d 329, 346-47) and support convictions and concurrent sentences for both aggravated battery and mob action.

The judgment of the appellate court is accordingly reversed in part and affirmed in part. The cause is remanded to the circuit court of Du Page County with directions to impose sentence on defendant’s mob-action conviction to run concurrently with the aggravated-battery conviction and to vacate the armed-violence and disorderly-conduct convictions.

Appellate court affirmed in part and reversed in part; cause remanded, with directions.

JUSTICE MORAN,

concurring in part and dissenting in part:

I dissent from the portion of the majority opinion holding that the appellate court could have properly remanded the cause for sentencing on the two convictions for which no sentence had been imposed. The armed-violence and aggravated-battery convictions were properly before the appellate court. However, the mob-violence and disorderly-conduct convictions were not appealed by defendant. The opinion’s rationale for permitting these two convictions to be remanded for sentencing is that they were “intimately related to and ‘dependent upon’ the appealed convictions within the meaning of Rule 615(b)(2)” (73 Ill. 2d R. 615(b(2)). (91 Ill. 2d at 353-54.) I disagree.

Our Rule 606(a) (73 Ill. 2d R. 606(a)) provides in pertinent part: “No step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional.” Here, the appellate court never obtained jurisdiction over the unappealed mob-violence and disorderly-conduct convictions. In this regard, I find People v. Lilly (1974), 56 Ill. 2d 493, and People v. Scott (1977), 69 Ill. 2d 85, inapposite. Those cases did not involve a situation like the instant case, where an appellate court attempted to assume jurisdiction over unappealed convictions. Although the opinion concedes that these cases do not resolve the issue of the State’s right to seek a remand here, nevertheless the majority finds that the cases do indicate the absence of sentence on one of two or more defendant-appealed sentences is not a jurisdictional defect. (91 Ill. 2d at 353.) Lilly involved two convictions based on a single act where the judgment of conviction for which no sentence was imposed was appealed. Similarly, in Scott, the issue before this court was “whether, having before it the defendant’s appeal seeking reversal of the conviction for aggravated kidnapping, the appellate court was empowered to remand the cause for imposition of sentence.” (69 Ill. 2d 85, 87.) This court specifically stated, “We need not and do not decide the question whether absent an appeal by defendant the People could have sought review of the order ‘merging’ the aggravated kidnapping conviction and the failure to impose sentence on that count.” (69 Ill. 2d 85, 87.) I believe the more accurate conclusion to be derived from these cases is that the absence of a sentence imposed on a conviction is not a jurisdictional bar to review so long as defendant has appealed that conviction. A broader reading of Rule 615(bX2) that confers jurisdiction on an unappealed conviction is not implied by the above cases.

Rule 615(b)(2) provides:

“(b) Powers of the Reviewing Court. On appeal the reviewing court may:
(2) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken.” (73 Ill. 2d R. 615(b)(2).)

The fallacy in the majority’s interpretation of the rule is its degradation of the plain language pertaining to setting aside, affirming or modifying the judgment or order from which the appeal is taken. The opinion emphasizes the portion of the rule relating to dependent proceedings in arriving at its conclusion. However, it is the appealed judgment from which the court derives its reviewing powers. By holding that failure to impose sentence upon an unappealed conviction, arising out of different acts, is “dependent upon the appealed conviction,” the majority effectively eviscerates the focal point of the rule.

Further, interpreting Rule 615(b)(2) as the majority does results in a conflict with our Rule 604(aXl) (73 Ill. 2d R. 604(a)(1)), which provides:

“(a) Appeals by the State.
(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge ***; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” (Emphasis added.)

Thus, under the clear language of Rule 604(aXl), the State cannot appeal a conviction to seek an order for imposition of a sentence. (Accord, People v. Gum (1980), 85 Ill. App. 3d 298, 302.) Interpreting Rule 615(bX2) to allow an unappealed conviction to act as a “proceeding dependent upon the appealed conviction” would, in effect, expand the State’s right of appeal beyond that contemplated by Rule 604(aXl).

Finally, the majority reasons that any interpretation of Rule 615(b)(2) other than the one it advances could have “mischievous consequences” in that if the convictions for which sentences were imposed were reversed, defendant could go unpunished. In short, the court, to avoid the potentiality of that occurrence (a situation not before the court in this case), has “forced” an interpretation never contemplated by its rule in order to reach a desired result. I suggest the proper approach is for this court, under its authority derived from article VI, section 16, of the Illinois Constitution, to clearly enhance the powers of the reviewing court, rather than fashioning an interpretation that I see as inconsistent with the plain language of the existing rule.

JUSTICE GOLDENHERSH joins in this partial concurrence and partial dissent.


source: Caselaw Access Project

author: CHIEF JUSTICE RYAN JUSTICE CLARK

license: Public Domain

text:
    (No. 54870.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES EICHELBERGER, Appellee.

      Opinion filed June 18, 1982.

      CLARK, GOLDENHERSH, and SIMON, JJ., dissenting.

      Tyrone C. Fahner, Attorney General, of Springfield, and James R. Benson, State’s Attorney, of Paxton (Michael B. Weinstein and Ellen M. Flaum, Assistant Attorneys General, of Chicago, and Robert J. Biderman and Denise M. Paul, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Gary S. Rapaport, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Defendant, James Eichelberger, was charged by information in the circuit court of Ford County with possession of less than 30 grams of a substance containing lysergc acid diethylamide (LSD). (Ill. Rev. Stat. 1979, ch. 561/2, par. 1402(b).) Defendant filed a motion to suppress evidence which had been taken from him following his warrantless arrest by Paxton police officers. Hearing was had on the motion immediately prior to trial. The motion was denied, and after a bench trial, defendant was found guilty and sentenced to a term of 18 months’ imprisonment. The appellate court reversed and remanded. (92 Ill. App. 3d 1199.) In a Rule 23 order (73 Ill. 2d R. 23), the court ruled that the warrantless arrest and the subsequent search were unlawful. The court concluded that there were no exigent circumstances present to justify the warrantless arrest. We granted the State’s petition for leave to appeal pursuant to Supreme Court Rule 315 (73 Ill. 2d R. 315). We now reverse.

At the suppression hearing defendant testified that on February 10, 1980, he was in his room at the Paxton Hotel in Paxton, talking with Michael Flavin. Flavin was asking questions about drags, and defendant was attempting to answer them. Defendant testified that the door to his hotel room was closed but “cracked open.” Defendant was sitting on his bed when two officers entered his room with their guns drawn, arrested him and searched him.

Paxton police officer Walter Whitehall was also called to testify for the defense at the suppression hearing. He testified that on February 9, 1980, the day before the arrest of defendant, he was advised by another Paxton police officer, Officer Brown, that defendant was suspected of selling contraband at the Paxton Hotel. The following day, at about 8 a.m., both officers went to the Paxton Hotel. Officer Whitehall was in a room next door to that of defendant. After about an hour, defendant was observed entering his room with Michael Flavin. It was revealed during the trial that Flavin was a police informant and that he was attempting to set up a “controlled buy” from the defendant. It was also revealed that, following the arrest of defendant, some substance was also seized from Flavin and from the bed by Officer Brown, who was not available to testify. These items are not involved in this case.

Whitehall testified that he could see a patch of sunlight on the hallway floor, indicating that defendant’s door was not closed. Neither the evidence at the suppression hearing nor that at the trial establishes clearly to what degree the door to defendant’s room was open. Some testimony of the officer indicates it was open wide enough for him to see into the room when he stepped around the comer. The testimony of the defendant indicates it was only “cracked open.” Whitehall then fully opened the door to his own room and stepped to the comer near the dividing wall between the two rooms in order to overhear defendant and Flavin. Whitehall testified that he heard Flavin ask defendant whether he had any “grams” and defendant answer in the affirmative. Whitehill then heard Flavin say he wanted a “gram” and defendant reply: “You got it.” Defendant also stated he expected to get some “coke” within the next few days. Whitehill testified that he knew that to people who use drugs the word “gram” refers to opium and the word “coke” refers to cocaine.

Whitehill gave a prearranged signal to Officer Brown indicating that he believed that a sale was occurring. Whitehill said that he then “stepped around the corner of the room” and arrested and searched the defendant.

Whitehill’s search did not uncover any opium (“gram”) or cocaine (“coke”) on the defendant’s person, but it did turn up several small squares of blotter paper in defendant’s jacket pocket. Later at trial, the State introduced evidence that the small squares of blotter paper, on analysis by a State forensic scientist, contained less than one-tenth of a gram of a substance containing LSD.

The defendant argued to the trial court that the officers had information concerning the defendant’s suspected illegal activities for more than 24 hours and, therefore, a search warrant should have been obtained. However, at the conclusion of the suppression hearing, the trial court stated:

“It’s obvious *** there [were] no grounds to get a search warrant before the officers believed an offense was taking place and once they believed that an offense was taking place they had a right to make an arrest.”

The first issue to be considered is whether defendant retained a reasonable expectation of privacy in his hotel room when the door was “cracked open.” Although the recent United States Supreme Court decision in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, concerned preserving the sanctity of the home and preventing intrusions which breach the entrance to the home, we note that this State has previously accorded the residents of a hotel the same constitutional protections against unreasonable searches as are enjoyed by residents of private homes. (People v. Bankhead (1963), 27 Ill. 2d 18, 23; People v. Wilson (1980), 86 Ill. App. 3d 637, 640; see also 1 LaFave, Search and Seizure sec. 2.3(b) (1978); Annot., 86 A.L.R2d 984 (1962), 68 Am. Jur. 2d Searches and Seizures sec. 18 (1973).) It follows, then, that the holding of Payton, that a warrantless, nonconsensual entry into a suspect’s home to make a routine felony arrest is violative of the fourth amendment absent exigent circumstances, in this State applies to an occupant of a hotel room as well.

We must determine what effect should be accorded the “cracked open” door. At the suppression hearing, defendant testified that the door “was closed, but it was cracked open.” Officer Whitehill testified that “you could tell by the sunlight on the floor [which he could see from his door] that the door of the room had been left open.” The State urges that “[defendant did not seek to exclude the intruding eye or uninvited ear and shed his right to privacy by leaving his door open.”

Although the State cites numerous cases in support of its argument that defendant has “waived” his fourth amendment rights by allowing his door to be “cracked open,” defendant correctly points out that those cases deal with the propriety of observation, and not entry, into a hotel room. These are lesser intrusions into privacy than a physical entry into the home. (See People v. Wright (1968), 41 Ill. 2d 170, 174, cert. denied (1969), 395 U.S. 933, 23 L. Ed. 2d 448, 89 S. Ct. 1993; Moody v. State (1974), 52 Ala. App. 552, 295 So.2d 272; State v. Brown (1973), 9 Wash. App. 937, 515 P.2d 1008; Borum v. United States (D.C. App. 1974), 318 A.2d 590; State v. Clarke (Fla. App. 1970), 242 So.2d 791; 1 LaFave, Search and Seizure sec. 2.3(c) (1978).) In contrast, in the instant case, defendant argues that his fourth amendment rights were violated by the warrantless entry of police officers into his hotel room and the subsequent arrest and search.

Other courts have recently considered what effect similar circumstances have on a defendant’s expectation of privacy. (United States v. Burns (10th Cir. 1980), 624 F.2d 95, cert. denied (1980), 449 U.S. 954, 66 L. Ed. 2d 219, 101 S. Ct. 361; United States v. Agapito (2d Cir. 1980), 620 F.2d 324, cert. denied (1980), 449 U.S. 834, 66 L. Ed. 2d 40, 101 S. Ct. 107.) According to those courts, a defendant does have a legitimate expectation of privacy within his hotel room. However, in contrast to the occupant of a private dwelling who has the exclusive enjoyment of the land he possesses immediately surrounding his home, the hotel occupant’s reasonable expectations of privacy are reduced with regard to the area immediately adjoining his room. (United States v. Burns (10th Cir. 1980), 624 F.2d 95, 100; cert. denied (1980), 449 U.S. 954, 66 L. Ed. 2d 219, 101 S. Ct. 361; United States v. Agapito (2d Cir. 1980), 620 F.2d 324, 328-32, cert. denied (1980), 449 U.S. 834, 66 L. Ed. 2d 40, 101 S. Ct. 107.) While defendant’s “cracked open” hotel room door may have facilitated the overhearing of activities carried on within the room by those outside, that fact by itself was in no way an invitation to or a justification for a warrantless entry. This fact may, however, be relevant in considering whether the entry was forcible or peaceful.

If the warrantless entry is to be justified, then, it must be justified on the basis of exigent circumstances. (Payton v. New York (1980), 445 U.S. 573, 583, 63 L. Ed. 2d 639, 648, 100 S. Ct. 1371, 1378; People v. Abney (1980), 81 Ill. 2d 159, 168.) This court recently addressed the question of exigent circumstances at length in Abney. In that case the court considered the constitutionality of the Illinois arrest statute (Ill. Rev. Stat. 1977, ch. 38, par. 107—2(c)) in light of the recent United States Supreme Court decision in Payton which declared a similar New York statute to be unconstitutional. The court concluded that our statute was “in compliance with the constitutional guidelines enunciated in Payton” because “the principles of the exigent circumstances rule *** had been judicially engrafted upon the statute.” (People v. Abney (1980), 81 Ill. 2d 159, 168.) This court then considered whether exigent circumstances were present in the facts of Abney.

Abney was an interlocutory appeal from a trial court suppression order. That order was affirmed by the appellate court. This court reversed. The court found that the exigent circumstances present “militated against delay and justified the officers’ decision to proceed without a warrant” and that “[additional factors also indicated that the officers acted in a reasonable fashion.” People v. Abney (1980), 81 Ill. 2d 159, 168-69.

In Abney a police officer interviewed a beating victim in the hospital who gave him the name, description and address of the defendant, who had been seen heading home. It was only V-k hours after the beating when two officers, without a warrant, entered the defendant’s residence and seized a bullet in plain view. The defendant was not present. Later, it was found that the bullet matched the caliber of the pistol allegedly used in the beating. People v. Abney (1980), 81 Ill. 2d 159, 162-63.

In reaching its decision the court identified certain factors as worthy of specific mention. The factors singled out as exigent circumstances in Abney were: (1) the need for prompt action; (2) the absence of any deliberate or unjustified delay by the officers during which time a warrant could have been obtained, and (3) the belief that the suspect was armed and exhibited some sign of a violent character. (People v. Abney (1980), 81 Ill. 2d 159, 169-71.) In addition, other factors were identified which suggested that the officers had acted reasonably. Those factors were: (1) the officers were acting on a clear showing of probable cause based on reasonably trustworthy information, (2) the defendant was clearly identified, (3) there was strong reason to believe that the defendant was present on the premises, and (4) the entry was peaceful. (People v. Abney (1980), 81 Ill. 2d 159, 171-72.) The court concluded that a warrantless entry was justified because of the compelling need for official action with no time to secure a warrant. People v. Abney (1980), 81 Ill. 2d 159, 173.

The case now before us is factually different from Pay-ton and Abney. In those cases the crime had been committed some time prior to the arrest and the home was entered for the purpose of making an arrest. In our case a crime was being committed in the presence of the officers who made the arrest in response thereto. This case also differs from Johnson v. United States (1948), 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367. In Johnson a police officer had received information from an informant that unknown persons were smoking opium in a certain hotel. The officer and four narcotic agents went to the hotel, where they smelled the odor of burning opium. The odor led to a certain room. They did not know who occupied this room. They knocked on the door and were admitted. An officer placed the occupant under arrest and then searched the room. The government attempted to justify the warrant-less search as incident to a lawful arrest. The court held that, under the applicable law, a warrantless arrest would be valid only if it were for a crime committed in the officer’s presence or for a felony of which he had reasonable cause to believe defendant guilty. The court noted that prior to the entry there were ample grounds for the issuance of a warrant and stated that the government in effect conceded that the arresting officer did not have probable cause to arrest the defendant until after the entry had been made and the officer found the woman who admitted them to be the sole occupant. In essence, the officer, prior to entry, did not possess the knowledge which justified a warrantless arrest of a person on the basis that an offense was committed in his presence.

In the instant case the offense in question occurred in the presence of the officers. In this State a police officer may arrest a person without a warrant when he has reasonable grounds to believe that the person is committing or has committed an offense. Ill. Rev. Stat. 1979, ch. 38, par. 107—2(c); People v. Phillips (1964), 30 Ill. 2d 158, 160; People v. Peak (1963), 29 Ill. 2d 343, 347.

An offense is committed in an officer’s presence when knowledge of the commission of an offense is acquired through any of his senses. It is not restricted to cases where knowledge thereof is provided by the officer’s sense of sight. (People v. Bradley (1957), 152 Cal. App. 2d 527, 533, 314 P.2d 108, 111; People v. Goldberg (1967), 19 N.Y.2d 460, 465, 227 N.E.2d 575, 578, 280 N.Y.S.2d 646, 649-50; Bass v. State (1943), 182 Md. 496, 505-06, 35 A.2d 155, 159; see 5 Am. Jur. 2d Arrest sec. 31 (1962); 1 Callaghan’s Ill. Crim. Proc. sec. 7.31, at 289 (1971).) In cases where the offense can be said to have been committed in the presence of an officer it has generally been held that the officer may enter the premises without a warrant for the purpose of making a warrantless arrest. See Annot., 76 A.L.R.2d 1432 (1961).

In our case, although the officers did not visually witness the delivery of a controlled substance, they could have reasonably believed, from what they overheard, that the delivery of a controlled substance was taking place. Such an offense is a felony under our statute. (Ill. Rev. Stat. 1979, ch. 561/2, par. 1401.) The fact that the officers reasonably believed that a felony was being committed in their presence demanded prompt police action and constituted an exigent circumstance which justified the warrantless entry into the hotel room and the arrest.

This court has cautioned that each case must be decided on the basis of the facts of that case and that the guiding principle is reasonableness under the constitutional provisions governing searches and seizures. (People v. Abney (1980), 81 Ill. 2d 159, 173.) The fact that the arrest was made while the defendant was committing a felony in the presence of the officers establishes the reasonableness of the warrantless entry and arrest. However, the reasonableness test is further buttressed in this case by the fact that, unlike the situation that existed in Johnson v. United States, prior to the overheard conversation, there was no probable cause to support the issuance of a warrant. Therefore, there was no unjustified delay on the part of the officers in procuring a warrant. Also, the events occurred on a Sunday morning, in a small city, which made it highly unlikely that a warrant could readily be procured. We note also that the entry was peaceful, in that the door was open and there was no forcible entry. The factors which this court considered in Abney as justifying a warrantless entry and arrest are not exclusive. We note, however, that in addition to the fact that a felony was being committed in the presence of the officers, many of the factors which this court considered as demonstrating the reasonableness of the arrest in Abney are also present in this case.

Although defendant was charged with and convicted of possession, and not the sale or delivery, of a controlled substance, we must look to the circumstances that were known to the officers at the time they acted in order to determine whether or not they acted reasonably in a given case. People v. Abney (1980), 81 Ill. 2d 159, 173; People v. Clay (1973), 55 Ill. 2d 501, 504.

We hold that the warrantless entry into defendant’s hotel room for the purpose of effecting an arrest did not violate defendant’s fourth amendment right since the police officers reasonably believed that a felony was being committed in their presence. The warrantless arrest of the defendant being valid, the officers then had the right to conduct a contemporaneous search of the person of the defendant and the area within his immediate control. Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034; 2 LaFave, Search and Seizure sec. 6.3 (1978).

Accordingly, the judgment of the appellate court is reversed, and the judgment of the circuit court of Ford County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE CLARK

dissenting:

I feel that the majority’s conclusion that the warrant-less arrest of this defendant was valid is wrong.

The majority correctly recognizes that the United States Supreme Court decision in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, “that a warrantless, nonconsensual entry into a suspect’s home to make a routine felony arrest is violative of the fourth amendment absent exigent circumstances, in this State applies to an occupant of a hotel room as well.” (91 Ill. 2d at 365.) The majority realizes that the defendant has a legitimate expectation of privacy in his hotel room, and I agree that because the defendant’s hotel room door was “cracked open,” “that fact by itself was in no way an invitation to or a justification for a warrantless entry.” 91 Ill. 2d at 366.

The United States Supreme Court in Payton noted that “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable” (445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380), and, “[ajbsent exigent circumstances, that thresholdx may not reasonably be crossed without a warrant” (445 U.S. 573, 590, 63 L. Ed. 2d 639, 653,100 S. Ct. 1371, 1382).

Because the Supreme Court in Payton treated that case as one in which there was ample time for the arresting officers to obtain a warrant, it was not necessary for the court to examine the “exigent circumstances” that justify a warrantless entry, but nevertheless the court characterized such circumstances as involving an “emergency or dangerous situation.” 445 U.S. 573, 583, 63 L. Ed. 2d 639, 649, 100 S. Ct. 1371, 1378.

I firmly believe that there were no such exigent circumstances here. The warrantless and unannounced entry into the defendant’s hotel room was not justified. The officers were not responding to an emergency situation. Unlike the situation in People v. Abney (1980), 81 Ill. 2d 159, the officers did not suspect the defendant was armed; nor had the defendant exhibited violent tendencies. (Compare People v. Abney (1980), 81 Ill. 2d 159, 171.) The informant was not in danger; there was no reason to believe that the informant’s physical safety was threatened. Nor was there any threat of an imminent destruction of evidence. The officers were not acting to curtail the defendant’s flight or escape; nor were they chasing the defendant in “hot pursuit” into his hotel room. There was no danger; there was no emergency; there was no exigent circumstance.

The majority reasons that because “a crime was being committed in the presence of the officers who made the arrest in response thereto” (91 Ill. 2d at 368), the entry into the defendant’s hotel room was justified. It is true that an officer may arrest a person when he has reasonable grounds to believe that the person is committing an offense in his presence. And an officer may rely upon his own senses in deciding if an offense is occurring.

Testimony at trial showed that Officer Whitehill overheard the informant ask the defendant if he had any “grams” and the defendant answered in the affirmative. Officer Whitehill overheard the informant say that he wanted a “gram” and the defendant reply “you got it,” and Officer Whitehill overheard the defendant say that he expected to get some “coke” within the next few days (91 Ill. 2d at 364).

It is not unreasonable to assume that an experienced police officer could, from listening to that conversation, believe that a drug sale was occurring. At this point, however, I believe the majority’s analysis falls apart. The majority concludes that the reasonable belief of the police officers that a felony was being committed in their presence constituted an exigent circumstance which justified the warrantless unannounced entry into the hotel room. Payton is unequivocal in asserting that reasonable belief or probable cause is not enough to justify a warrantless entry. The Supreme Court recalled Justice Jackson’s observation in Johnson v. United States (1948), 333 U.S. 10, 13-14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369:

“ ‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.’ ” (Payton v. New York (1980), 445 U.S. 573, 586 n.24, 63 L. Ed. 2d 639, 650 n.24, 100 S. Ct. 1371, 1380 n.24.)

In saying that a reasonable belief that an offense was being committed in the officers’ presence constitutes an exigent circumstance, the majority stands the decision in Pay-ton on its head.

The majority cites an A.L.R. annotation (91 Ill. 2d at 369) which states that when it can be said that an offense was committed in the presence of an officer, the officer may enter the premises without a warrant to make an arrest. However, the majority’s reliance on that annotation is misplaced in view of the fact that cases referred to precede Payton by almost 20 years.

I have no doubt that there was no exigent circumstance here. A police officer is not required under the fourth amendment to delay action where there is a danger to the officer’s or another’s safety. But law-enforcement officials cannot set up a controlled buy of drugs and then attempt to justify an unannounced warrantless entry into a private hotel room by asserting that because the drug sale was in their presence it constituted an exigent circumstance.

Without exigent circumstances the unannounced entry into the defendant’s hotel room was unlawful, the arrest unlawful and the subsequent search illegal. The motion to suppress the evidence obtained as a result of that search should have been granted.

I feel the majority misses the point of Payton in allowing the extent of fourth amendment protections to turn on the reasonable beliefs of the law-enforcement officials. I must voice a strong dissent.

GOLDENHERSH and SIMON, JJ., join in this dissent.


author: JUSTICE WARD

text:
    (No. 54720.
    STEVEN LYNN POWERS, Appellee, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Appellant.

      Opinion filed June 18, 1982.

      Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard E. Boyle and William P. Gavin, of counsel), for appellant.
    Rex Carr and Jeanne Sathre, of Cohn, Carr, Korein, Kunin, Schlichter & Brennan, of East St. Louis, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from an action brought by Steven Lynn Powers in the circuit court of St. Clair County under the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq. (1970)). The plaintiff complained of back injuries sustained while employed by the Illinois Central Gulf Railroad Company in Paducah, Kentucky. A jury which had been given an itemized verdict form returned a verdict for the plaintiff that totaled $300,000. The court’s instructions to the jury on damages had listed four elements of damage for the injuries, and the verdict form given to the jury was itemized as to those elements. The appellate court, with one justice dissenting, found no error in the instruction or the itemization of damage on the verdict form, and it affirmed the judgment that had been entered on the verdict. (92 Ill. App. 3d 1033.) We granted the defendant leave to appeal (73 Ill. 2d R. 315).

The defendant contends that the court erred in giving the following instruction to the jury over its objection:

“If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damage proved by the evidence to have resulted, in whole or in part, from the negligence of the defendant:
The nature, extent and duration of the injury.
The disability resulting from the injury.
The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
The value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future.
Whether any of these elements of damages has been proved by the evidence is for you to determine.”

Excepting the phrase “in whole or in part,” which is not involved on this appeal, the first and last paragraphs of the instruction are the basic Illinois pattern measure of damages instruction for personal injury. (Illinois Pattern Jury Instruction, Civil, No. 30.01 (2d ed. 1971) (hereinafter cited as IPI Civil).) The other four paragraphs set out separate elements of damage claimed here by the plaintiff and which appear in the pattern instructions. IPI Civil Nos. 30.02, 30.04, 30.05, 30.07.

The defendant also says there was error in the following verdict form that was given to the jury over its objection:

“We, the Jury, find for the plaintiff and against the defendant. We assess the damages as follows:
Nature, extent and duration of the injury $_
Disability resulting from the injury $-.
Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injury $_
The value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future. $_

The jury awarded $50,000 for each of the first three elements, and $150,000 for the fourth.

The defendant’s contentions of error are that the instruction and verdict form directed the jury to award a double or duplicative recovery for the plaintiff. The defendant says that “the nature, extent and duration of the injury” is not compensable as an element of damage separate and apart from the other elements of damage in the instruction, although it is listed as a separate element in the pattern jury instructions. (IPI Civil No. 30.02.) On that ground, the defendant requests this court to order a remittitur of $50,000, the amount of the award for “nature, extent and duration.” The defendant also says that the trial court erred by giving the jury a verdict form that required it to itemize its verdict as to each element of damage.

A jury, of course, receives instructions from the trial court as to the elements of damage claimed to have been sustained by the plaintiff. A court, through its instructions, seeks to facilitate a jury’s determination of damages in a personal injury case by itemizing the elements of damage. When the jury is instructed there is a danger that there may be no instruction given regarding a compensable element of damage which may result in the plaintiff’s being undercompensated. There is a danger, too, that in the instructions given an element of damage may be duplicated or elements may overlap with the result that the jury may give duplicative awards. The risk of overlapping and duplicative awards may be enhanced when the plaintiff’s counsel is permitted to argue to the jury from a chart or “blackboard” that sets out the elements of damage claimed. The attorney asks the jury to award a specified amount for each of the elements of damage listed. This court in Caley v. Manicke (1962), 24 Ill. 2d 390, approved the use of such a chart or “blackboard.” See generally Graham, Pattern Jury Instructions: The Prospect of Over or Undercompensation in Damage Awards for Personal Injuries, 28 DePaul L. Rev. 33(1978).

The plaintiff first argues that the defendant waived its contentions by failing to set out its objections with particularity in its post-trial motion. The plaintiff relies upon Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344. In Brown this court held that, in order to preserve an objection to a jury instruction for appeal, a litigant’s post-trial motion must include “a simple, succinct statement of the factual or legal basis for movant’s belief that the trial court action was erroneous.” (83 Ill. 2d 344, 350.) The purpose is to afford the trial court an opportunity to make an informed reevaluation of its ruling on the instruction.

The objections to the instructions and verdict form were not waived. During the conference on instructions, the defendant argued that the instruction and verdict form permitted the jury to return separate awards for duplicative elements of damage. The post-trial motion sufficiently apprised the court of this ground because in that motion the defendant alleged that the court erred by giving the instruction and verdict form, and said that, “[a]s stated in the transcript of the proceedings, the form of verdict invited the jury to return a separate monetary award for duplicitous and redundant elements of damages ***.” The motion requested that the court order a new trial unless part of the verdict was remitted, because various errors, “including the errors with respect to the jury instructions and the error in giving the form of a verdict which invited and directed the jury to return an amount for duplicitous and redundant categories of damages, which in fact the jury did ***,” resulted in an excessive verdict.

Too, the defendant’s motion stated that the court had erred by refusing to submit the following verdict form, which the defendant had tendered:

“We, the Jury, find for the plaintiff and against the defendant and assess the plaintiff’s damages in the sum of $__These damages consist of the following:
Economic Loss, consisting of lost earnings, if any, and the present cash value of earnings reasonably certain to be lost in the future, if any. $__
Non-economic loss, if any, consisting of all other elements of damages. $__”

As to the defendant’s claim of danger of a duplicative or overlapping recovery, the appellate court accepted the force of the contention. The court said:

“The ‘Notes on Use’ of IPI Civil No. 30.02 state that it is difficult to imagine an injury case in which the insertion of the phrase ‘[t]he nature, extent and duration of the injury’ into IPI Civil No. 30.01 will not be appropriate. However, it is also difficult to conceive of a logical basis for placing a separate value on elements such as disability and pain and suffering, and nature, extent and duration of the injury in a case involving a back injury. Rather, it would seem that the jury must consider the nature, extent, and duration of the injury as a means of determining the appropriate amount to award for elements such as disability and pain and suffering.” (92 Ill. App. 3d 1033, 1036-37.)

Despite this acknowledgement, the court said it would not change the practice of including nature, extent and duration as an element of damage for personal injuries. 92 Ill. App. 3d 1033, 1038.

An examination of decisions, however, shows that whatever may be the practice, the propriety of including “nature, extent and duration” as an element of damage has not been considered and approved in our courts of review. The comment accompanying IPI Civil No. 30.02 cites three cases as holding that nature, extent and duration is a separate element of damage: Donk Brothers Coal & Coke Co. v. Thil (1907), 228 Ill. 233, 241; McDaniels v. Terminal R.R. Association (1939), 302 Ill. App. 332, 350; and Sprickerhoff v. Baltimore & Ohio R.R. Co. (1944), 323 Ill. App. 340, 351.

Those decisions involved instructions directing the jury to consider the nature, extent and duration of the injuries, among other factors, in assessing damages. In none of the cases, however, as the appellate court observed, too, was it stated that “nature, extent and duration” was a separately compensable element. Moreover, in none of the cases was the question presented here an issue. In none did the court discuss whether the involved instruction permitted a duplicating or overlapping recovery in that it asked the jury to consider the nature, extent and duration of the injury in addition to other elements of damage.

We found no other authority to support the giving of the “nature, extent and duration” instruction as a separate element of damage. Claiming to the contrary, the plaintiff cites Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, cert. denied (1972), 409 U.S. 983, 34 L. Ed. 2d 247, 93 S. Ct. 322, and Doering v. Janssen (1979), 76 Ill. App. 3d 62.

In Raines, this court affirmed a judgment entered upon a verdict where the court had given the jury instructions relating to compensation for six categories of damage, one being the nature, extent and duration of the injury. This court’s review of the judgment, however, concerned only the sufficiency of the evidence; the issue of duplicative or double recovery did not appear. 51 Ill. 2d 428, 437-44.

Doering is also inapplicable on this question. The court affirmed a verdict awarding separate compensation for nature, extent and duration, and other categories of damage, but there, too, no question of double recovery was raised.

There are decisions from other jurisdictions, on the other hand, that do support a conclusion that the instruction and the verdict form given here invited a duplicating recovery. See Gillis v. Sonnier (Miss. 1966), 187 So. 2d 311, 313-14 (elements: “nature and extent of injuries” and “disability” are really the same); Waymire v. Carter (Mo. App.1963), 366 S.W.2d 74, 79-80 (instruction authorized double damages because one clause directed the jury to consider the character, extent and permanency of the injuries, and another directed the jury to consider the extent of future disability in general).

We consider that, excepting perhaps an award to cover expenses, a jury cannot determine damages for the nature, extent and duration of a plaintiff’s injury in isolation and apart from the remaining elements of damage. Any award for elements such as disability, pain and suffering, or disfigurement will of necessity involve and be based upon the jury's examination of and assessment of the nature, extent and duration of the injury. As the dissenting justice in the appellate court put it, “It is incomprehensible that the jury could place a monetary value on the nature, extent and duration of plaintiff’s injury without relating such an award to the remaining items of compensable loss, disability and disfigurement, pain and suffering, and loss of earnings (IPI Civil Nos. 30.04, 30.05, and 30.07).” (92 Ill. App. 3d 1033, 1044 (Kasserman, P.J., dissenting).) Obviously, that is the reason that in cases such as Donk Brothers, which is cited in the IPI comment, the jury was instructed to consider the nature, extent and duration of the plaintiff’s injuries in reaching a verdict. But instructing a jury to consider the nature, extent and duration is not the same as instructing it to separately award for the nature, extent and duration of the injury. See, e.g., Hieber v. Thompson (Mo. App. 1952), 252 S.W.2d 116, 124-25 (instruction directing jury to take into consideration “nature, character and extent of all injuries” along with pain, anguish and other items did not authorize double recovery, as jury was directed only to consider those factors in reaching a figure, not to allow for each).

The plaintiff attempts to defend the treatment of nature, extent and duration as a separate element of damage, saying:

“[I]n Illinois, disability specifically addressed physical and economic limitations on the plaintiff by reason of the injury; pain and suffering concerns the existence of discomfort directly due to the injury and as a consequence of treatment of the injury; and nature, extent and duration addresses the fact of injury to the body itself, the character of that injury, and whether it is of a permanent or temporary nature.”

The fault in the argument is that it would permit a plaintiff to recover for the injury itself, in addition to recovering for all of the elements of damage which themselves are to compensate for the injury. Because an award fully compensating the plaintiff for the injury itself would include compensation for those elements, it is clear that an instruction calls for a duplicative recovery if it tells the jury to award for the injury in addition to awarding for pain, suffering, disability, and other elements of damage. (See, e.g., South Covington & Cincinnati St. Ry. v. Vanice (1925), 211 Ky. 774, 785-86, 278 S.W. 116, 120 (instruction that allows damages for injuries to the person in addition to damages for physical and mental suffering and impairment of earning capacity necessarily authorizes double recovery); Kansas City, Missouri & Ohio Ry. Co. v. Florence (Tex. Civ. App. 1911), 138 S.W. 430, 431-32 (instruction was erroneous because it could have led the jury to believe that loss of time from business, pain and suffering and impairment of ability to work were elements compensable in addition to compensation for the injuries sustained).) The error in instructions that allow a duplicative award for the injury itself is recognized in general commentaries, too. See 25 A. C.J.S. Damages sec. 181 (1966) (instruction is objectionable if it induces jury to allow recovery both for personal injury itself and other enumerated elements of damage).

We hold, therefore, that it was error to give the IPI instruction relating to the nature, extent and duration of the plaintiff’s injury as a separately compensable element of damage when the jury also was given the instruction on the other IPI elements of damage relating to his injury. We do not hold that a jury may never be instructed to consider the nature, extent and duration of the plaintiff’s injury but simply that a jury should not be instructed to consider it as a separate and compensable element of damage in addition to the other elements of damage stated in the IPI. Thereby, duplication or overlapping of the compensable elements for which the jury is to allow damages will be avoided.

Professor Michael Graham has noted that an examination of the pattern instructions in 30 States shows that only the instructions in Illinois, South Dakota and Washington suggest that “nature, extent and duration” should be regarded as a separate and compensable element of damage. (Graham, Pattern Jury Instructions: The Prospect of Over or Undercompensation in Damage Awards for Personal Injuries, 28 De Paul L. Rev. 33, 53 (1978).) Because of the risk of duplicative or overlapping awards by the jury, he states that “nature, extent and duration” should not appear in a pattern jury instruction in addition to other elements of damage as an element of separate and compensable damage. It may, however, be referred to as a measure of the compensable elements of damage. He observes:

“The better treatment of ‘nature, extent, and duration’ appears in the jury instructions for Michigan, Wisconsin, Minnesota, and Colorado. In these states, the instructions treat the nature, extent, and duration of the injury as a measure of the other elements of damage and not as a separate compensable element. Pursuant to these instructions, the amount that the jury awards for the various compensable elements of damage that flow from an injury depends on the injury’s nature, extent, and duration. Thus, these instructions avoid the problems that arise when the court instructs the jury to compensate the plaintiff once for the nature, extent, and duration of the injury and again for the various elements of damage that the injury produced.” 28 De Paul L. Rev. 33, 54-55.

It may be appropriate to observe that while a rule of this court prescribes the use of IPI, and though they have been of inestimable importance and value, the IPI are not exempt from challenge. Rule 239(a) (73 Ill. 2d R. 239(a)) directs that IPI instructions should be used wherever they “accurately state the law” applicable in a case. There has not been any advance approval of the IPI by this court. An instruction is approved or rejected only after it has been judicially questioned and considered.

The plaintiff argues, too, that even if the instruction erroneously called for a duplicating award, the defendant could not have been prejudiced. He says that the jury, in seeking to compensate him reasonably and fairly, never would have awarded separate amounts for the same damage.

That argument is not convincing. Of course, it is to be presumed that the jury followed the court’s instruction, which told it to award separately for the nature, extent and duration of the injury.

Too, it is obvious from the plaintiff’s closing argument that this was not a case of merely abstract error because of an instruction. An award for “nature, extent and duration” certainly overlaps with an award for disability. (See Gillis v. Sonnier (Miss. 1966), 187 So.2d 311, 313-14; Waymire v. Carter (Mo. App. 1963), 366 S.W.2d 74, 79-80; see also Adkins v. Kelley (1968), 244 Ark. 199, 424 S.W.2d 373 (“nature, extent, duration and permanency of the injury” should have been included as an element of damage in instruction because it had no other element to compensate the plaintiff for his disability).) In closing argument, the plaintiff’s attorney called upon the jury to give a double award:

“[T]o Steve the most important item [of damage] may be the nature, extent and duration of his disability. Now those two items, actually you could easily consider that they both mean close to the same. They don’t but you can consider and for the sake of this argument I am going to treat those about the same. I think that each of these items is worth a thousand dollars a year for the rest of his life expectancy as you will be told. The life expectancy will be $46,000, nature, extent and duration, $46,000 for disability, [sic]”

The verdict form then told the jury in effect to enter a separate amount for each element of damage. No instruction was given to the jury as to distinguishing the nature, extent and duration of the injury from disability. For each, the jury returned $50,000. In these circumstances one cannot say that the error was not prejudicial to the defendant.

Except for the listing of nature, extent and duration of the injury on the verdict form, as an element for compensation, we do not consider that the trial court erred in submitting the itemized verdict form to the jury. Section 65.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 65.1) provides:

“In every case where damages for injury to the person are assessed by the jury the verdict shall be itemized so as to reflect the monetary distribution among economic loss and non-economic loss, if any”

The defendant argues that no itemization beyond the two categories stated in the statute is permitted.

The language in section 65.1 is not without ambiguity. The appellate court, in holding that the itemized verdict form used here was not violative of the statute, considered that the use of the word “among” showed that itemization beyond the two general categories of damage was contemplated by the General Assembly. (92 Ill. App. 3d 1033, 1038-39.) There appears to have been only one other decision that has interpreted the language of section 65.1. In Doering v. Janssen (1979), 76 Ill. App. 3d 62, 67-68, the court held that a verdict form which had permitted itemization for such specific elements of damage as pain and suffering, loss of earnings, and medical expenses was not erroneous. The court concluded from an examination of the legislative comment and discussion at the time of the enactment of section 65.1 that the legislative intent was to require jurors to consider carefully the reason for which each dollar in damages is awarded. The court deemed that specific itemization of damages beyond the economic and non-economic categories was thoroughly consistent with that legislative purpose. We have the same view. Confining a jury to a consideration of only economic loss and noneconomic loss, the literal language of the statute, would in many situations be ambiguous and possibly produce confusion. We consider that a more detailed itemization is not erroneous and in many cases will be of greater assistance to the jurors in determining what specific awards to allocate for the separate and compensable elements of damage.

As to the disposition on appeal, the circuit court’s judgment is affirmed except for that portion and that amount, $50,000, awarded for the nature, extent and duration of the injury. That portion of the judgment is reversed. The plaintiff’s argument that the verdict should not be disturbed at all because the defendant does not contend that the total award of $300,000 is an excessive recovery is not convincing. It would have us ignore the trial court’s error. The defendant does contend that the award for nature, extent and duration was improper and unwarranted and asks for a reduction of $50,000 in the award. The jury was erroneously instructed as to a compensable element of damage and was given an itemized verdict form erroneously including it as a compensable element of damage. The jury followed the court’s instruction and as part of its finding awarded damages for the various elements of damage on which the court had instructed it, including, by the court’s error, “nature, extent and duration” in the amount of $50,000. A reviewing court may reverse a trial court’s judgment in part to remedy the effect of the error. See North Shore Marine, Inc. v. Engel (1980), 81 Ill. App. 3d 530 (judgment modified to reduce excess caused by use of improper measure of damage); Alsip Homebuilders, Inc. v. Shusta (1972), 6 Ill. App. 3d 65 (punitive damages not recoverable in type of case but verdict did award specified amount for punitive damages; judgment affirmed as to compensatory damages and reversed as to punitive).

For the reasons given, the judgment of the appellate court is affirmed in part and reversed in part. The judgment of the circuit court is affirmed in part and reversed in part.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part.


author: JUSTICE WARD JUSTICE SIMON,

text:
    (No. 54922.
    RONALD PROSSER, Appellee, v. THE VILLAGE OF FOX LAKE et al., Appellants.

      Opinion filed June 18, 1982.

      SIMON and CLARK, JJ., dissenting.
    Soffietti, Johnson & Teegen, Ltd., of Fox Lake (Howard K Teegen, of counsel), for appellants.
    Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (D. Richard Joslyn, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Ronald Prosser, a trustee of the village of Fox Lake, brought an action against the village and several of the trustees and officers of the village for a permanent injunction against the operation of two ordinances that he claimed were passed in violation of section 3 — 11—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 11—17). Section 3 — 11—17 requires “the concurrence of a majority of all members then holding office” on a village’s board of trustees for the passage of an ordinance. The issue for our review is whether the failure of an elected trustee, who serves also as the acting village president, to vote on a proposed ordinance during a meeting of the trustees at which he was present constitutes concurrence in the action taken by the majority of those voting.

Ordinance No. 79 — 5 established the office of village president as a full-time position. Ordinance No. 79 — 6 set the annual salary of the village president at $22,000 and fixed the compensation of village trustees at $75 for each regular meeting attended and $50 for each special meeting attended. At a meeting of the village’s board of trustees on April 16, 1979, roll-call votes were taken on the proposed ordinances. Five of the village’s six trustees, including the acting president, were present. The recorded minutes of the meeting show that trustees Kiesgen, Berdnick, and Krueger voted “aye” on each proposal; trustee Misiek voted “nay” on each; trustee Prosser was absent; and trustee Hamm, who was the acting village president, did not vote. The record shows that Hamm did not vote on the advice of the village attorney that his vote was not necessary for passage. Both ordinances were designated “approved,” signed by Hamm as acting president, attested to by the village clerk, and published within the 30-day period prescribed by section 1 — 2—4 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1—2—4).

The plaintiff sought to enjoin enforcement of the ordinances on the ground that the three “aye” votes did not constitute “the concurrence of a majority” of the six board members. (Trustee Hamm was legally qualified to serve as acting village president, but under section 3—11—14 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3—11—14) he was prohibited from voting in both of his capacities, i.e., as trustee and as acting president.) The plaintiff and the defendants filed motions for summary judgment. The circuit court of Lake County, interpreting the acting president’s signing of the ordinances as a “concurrence” within the meaning of section 3 — 11—17, entered summary judgment in favor of the defendants. The appellate court, with one justice dissenting, reversed and entered summary judgment in favor of the plaintiff (94 Ill. App. 3d 78). We granted the defendants’ petition for leave to appeal. 73 Ill. 2d R. 315.

We would note that many of the provisions of the Illinois Municipal Code make reference to “city council” and “mayor.” Those provisions are applicable also to village government, since section 3 — 12—5 (Ill. Rev. Stat. 1979, ch. 24, par. 3—12—5) provides that a village’s board of trustees, consisting of the president and the trustees, “shall pass ordinances, resolutions, and motions in the same manner as a city council.” See also Ill. Rev. Stat. 1979, ch. 24, pars. 3-12-2, 3-12-3.

Though the legislative body of a municipality may determine its own rules of procedure in the adoption of ordinances (Ill. Rev. Stat. 1979, ch. 24, par. 3—11—11), the record does not show that the village of Fox Lake had done so. The proceeding here was governed by the pertinent statutory provisions.

Section 3 — 11—17 states that “[t]he yeas and nays shall be taken upon the question of the passage of the designated ordinances, resolutions, or motions and recorded in the journal of the city council.” (Ill. Rev. Stat. 1979, ch. 24, par. 3—11—17.) The statute provides for the taking of only two types of votes — “yeas” and “nays.” Thus, an attempt to vote other than “yea” (“aye”) or “nay,” for example “abstain” or “present,” is not deemed to be a vote. See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137.

If a quorum is present, municipal legislators cannot avoid their voting responsibilities by refusing to vote when present at a meeting. (See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137; see also People ex rel. Anderson v. Chicago & North Western Ry. Co. (1947), 396 Ill. 466.) A legal significance or effect must be given to each failure to vote by a municipal legislator who is present at a board meeting in order to prevent frustration or abuse of the legislative process. (State ex rel. Young v. Yates (1897), 19 Mont. 239, 47 P. 1004.) He should not be allowed to have his physical presence counted toward the constitution of a quorum and at the same time be allowed to deny, in effect, his official presence by a failure to vote. Thus, a municipal legislator’s failure to vote either “yea” or “nay” on a proposed ordinance must be interpreted to have the same effect as either a “yea” or a “nay” vote.

Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137, involved a city council’s vote on a motion to approve the city treasurer’s bond. Four aldermen voted in favor of the motion and the remaining four refused to vote. The mayor also voted in favor of the motion and declared that the motion had carried. This court did not invoke the common law rule that a failure to vote constitutes acquiescence with the majority of those voting. Instead it said that the motion has passed regardless of whether the four refusals to vote were considered as “yeas” or “nays.” If considered to be “yeas,” the motion carried eight votes to none. If the refusals to vote were considered to be “nays,” the aldermen were deadlocked at four votes in favor and four votes against. In that event, the mayor was entitled to cast his “yea” vote and the motion carried. It is to be observed that while the court did not decide whether the refusals to vote were to be deemed “yeas” or “nays,” it is clear that it judged that the refusal to vote was not to be considered of no significance. The court’s reasoning shows that it deemed that the refusal to vote was to have a legal effect on the balloting.

The effect of voting to “abstain,.” or to “pass,” or voting “present” or of refusing to vote when present at a meeting depends on whether “the affirmative vote” of a majority or “the concurrence” of a majority, of either the quorum or of all members then holding office, is required for passage. If “the affirmative vote” of a majority of either standard is required (e.g., Ill. Rev. Stat. 1979, ch. 24, par. 11—74—6), then nothing less than a majority of “yea” or “aye” votes will result in passage. An attempt to vote to “abstain” or in any manner other than “yea” or “nay,” or a failure to vote shall be considered to have the effect of a “nay” vote. Where the “concurrence” of a majority is required for passage, the holding in most of the jurisdictions where the issue has been considered is that a vote of “pass,” “present,” or “abstain” or a failure to vote when present constitutes an acquiescence or concurrence with the members of the majority who did vote on the question involved. This is described in The Law of Local Government Operations: “It is a general rule that those members present at a meeting consisting of a quorum must vote against a proposal in order to defeat it. If members are present and refuse to vote, they are deemed to have consented to the majority decision.” (Rhyne, The Law of Local Government Operations sec. 5.6, at 77 (1980). (See also Annot., 63 A.L.R.3d 1072, 1083 (1975); Froehlich, Effect of Council Members Voting “Abstain, ” “Pass,” or “Present” 59 Ill. Municipal Rev. 15 (June 1980).) This holding of a majority of jurisdictions developed from the common law rule pertaining to elections announced in Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685: “Whenever electors are present, and do not vote at all (as they have done here,) ‘they virtually acquiesce in the election made by those who do.’ ”

Hamm’s failure to vote as a trustee operated as a concurrence with the approving votes of the three trustees, i.e., Kiesgen, Berdnick, and Krueger, who constituted a majority of the trustees who actually voted. Trustee Misiek voted against the ordinances. Thus, ordinances 79 — 5 and 79 — 6 were passed by a margin of four to one. See Annot., 63 A.L.R.3d 1072, 1083 (1975); Froehlich, Effect of Council Members Voting “Abstain,” “Pass,” or “Present, ” 59 Ill. Municipal Rev. 15 (June 1980).

The plaintiff contends that even if Hamm’s failure to vote is considered as a concurrence with the majority, the ordinances are invalid, since no vote was recorded for Hamm as section 3 — 11—17 of the Illinois Municipal Code requires. There is no merit in this. Under the circumstances, the village clerk could not reasonably be expected to describe the conduct of Hamm other than as a failure to vote. It was only after prolonged litigation that it has been determined that Hamm’s inaction or failure to vote should be given the effect of a “yea” vote.

For the reasons given, the judgment of the appellate court is reversed. The judgment of the circuit court of Lake County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON,

dissenting:

Section 3 — 11—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3—11—17) requires “the concurrence of a majority of all members then holding office” before an ordinance may be passed by a village board of trustees. The two ordinances in issue received only three “aye” votes — not a majority of the six-member board. One member voted against the measures; one, Richard Hamm, did not vote because the measures concerned his salary; and one member was absent. Unlike the majority, I am forced to conclude that the ordinances did not pass.

The majority contends that trustee Hamm’s failure to vote can be counted with the “aye” votes so that the ordinances did have the concurrence of four members necessary for passage. In arriving at this peculiar rule, it relies on what it calls the common law rule of Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685 (also known as Oldknow v. Wainwright), in which Lord Mansfield stated in a one-line opinion that “[wjhenever electors are present, and do not vote at all (as they have done here,) ‘they virtually acquiesce in the election made by those who do.’ ” The majority states that this is the appropriate rule to apply when a statute requires “the concurrence” of a majority of all members as opposed to the “affirmative vote” of such a majority, and that under that rule, Hamm’s abstention would be counted with the “aye” votes.

The majority’s reliance on Rex v. Foxcroft is misplaced. That case had little to do with the issues presented here. First, I believe the majority’s interpretation of what Lord Mansfield said is incorrect. Second, even if the majority is correct in its interpretation of his statement, to take such a hoary case out of its common law context and apply it to this case in which a special rule for the passage of ordinances is given in the Illinois Municipal Code is error. Admittedly, there are a few cases that seem to support the majority’s interpretation of the rule in Rex v. Foxcroft and its application to cases like the one presented here. (See, e.g., State ex rel. Young v. Yates (1897), 19 Mont. 239, 47 P. 1004 (dictum); Northwestern Bell Telephone Co. v. Board of Commissioners (N.D. 1973), 211 N.W.2d 399 (relying on Babyak and Yates, not Rex v. Foxcroft); Babyak v. Alten (1958), 106 Ohio App. 191, 154 N.E.2d 14 (dictum and probably overruled sub silentio in Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552).) The weight of authority appears, however, to be against the application of any such rule to cases involving statutes which require the agreement of the majority of the total membership (see, e.g., Mann v. Key (Ala. 1977), 345 So.2d 293; State ex rel. Deal v. Alexander (1899), 107 Iowa 177, 77 N.W. 841; Ram Development Co. v. Shaw (Minn. 1976), 244 N.W.2d 110; Caffey v. Veale (1944), 193 Okla. 444, 145 P.2d 961; State ex rel. Rea v. Etheridge (Tex. Com. App. 1930), 32 S.W.2d 828), even when the statute requires a “concurrence.” See, e.g., Reese v. State ex rel. Carswell (1913), 184 Ala. 36, 62 So. 847; Van Hovenberg v. Holeman (1940), 201 Ark. 370, 144 S.W.2d 718; Steers Sand & Gravel Corp. v. Village Board (N.Y. Sup. Ct. 1954), 129 N.Y.S.2d 403; Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552; State ex rel. Roberts v. Gruber (1962), 231 Or. 494, 500, 373 P.2d 657, 660 (condemning Babyak and State ex rel. Young v. Yates as an unwarranted extension of Rex v. Foxcroft).

Rex v. Foxcroft involved the appointment of the town clerk of Nottingham by the mayor, aldermen, and common council. Of the 25 electors 21 were present at the meeting. Of those present, nine voted for Thomas Sea-grave, and 12 refused to vote entirely on the ground that the position was already occupied. In my view, the case stands for several propositions. First, the common law requirement for action by such a body is the agreement of a majority of those present and voting, and not a majority of those present. Next, the failure of abstainers to speak will not be construed as a “no” vote, even if their views on the election were clear. Finally, nonvoting members of the body may be counted in establishing the presence of a quorum without otherwise affecting the vote. In his characteristic style, Lord Mansfield rationalized his rule by saying that such members “virtually acquiesce” in the election made by those who do vote. Rex v. Foxcroft (1760), 2 Burr. 1017,1021, 97 Eng. Rep. 683, 685.

My colleagues apparently interpret Lord Mansfield’s statement to mean that while a majority of those present is necessary for a parliamentary body to take action, those who are present but do not vote are deemed to acquiesce, so that the requisite majority is achieved. This is a distortion, though not an original one, of what Lord Mansfield said. He did not say abstainers support the position of the majority so as to add to the majority; he said they accept the action taken by the entire body. They had a vote and they did not use it. The election was complete without their participation because only a majority of those present and voting is required.

In most situations the majority’s misinterpretation of the Foxcrofi rule would cause no mischief. If the common law requirement of a majority of those present and voting is what should be applied and instead a court applies a rule that a majority of those present is necessary but abstainers will be counted with the majority, the result reached would still be the same. But even assuming the majority’s loose definition of the Foxcrofi rule is correct, it has no place in a case in which a strict statutory requirement for the passage of legislation, namely a concurrence by a majority of those currently holding office, must be followed instead of the usual common law rule. The rule the majority applies is not so obvious or commonly known that one would expect the legislature to have been aware of it. In fact, as noted above, most cases do not apply such a rule to statutes like the one we have before us. As such, it is unlikely the legislature intended it to cover the situation. To apply it here, where the requirements for passage were purposely made stricter than the common law, would emasculate the special rule for ordinances that the legislature saw fit to impose. The statute would be avoided by the use of a legal fiction.

The majority does not recognize the distinction between cases involving the common law requirement for the passage of legislation and those involving a statutory requirement like that of the Illinois Municipal Code. Indeed, in marshaling support for its judgment, it cites an A.L.R. annotation on the subject (Annot., 63 A.L.R.3d 1072 (1975)), but rather than citing to the section of the annotation dealing with cases in which the requirement for passage was a majority of the total membership, it cites to the page of the section that discusses cases in which the common law requirement applied. The former section of the annotation cites many more cases against the majority’s position than for it. The majority also cites Rhyne, Law of Local Government Operations sec. 5.6, at 77 (1980), as authority to apply the rule it advocates to the present case. Yet, taken in its proper context, Rhyne’s statement is no such authority. None of the cases cited by Rhyne deal with a statutory imposition that a majority of the legislative body’s membership agree. All concern a lesser requirement for passage. One such case, Mann v. Housing Authority (1952), 20 N.J. Super. 276, 279, 89 A.2d 725, 727, holds that the rule my colleagues advocate applies only where “no specified number of votes is required, but the majority of a board regularly convened is entitled to act.” Since the statute the court in Mann was construing required at least three votes for passage of any legislation, the rule the majority here advances was not applied. The majority also supports its judgment with Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137. That case too concerns only a common law requirement for the passage of the legislation and not a strict statutory requirement that a majority of the legislative body’s membership agree.

The majority apparently recognizes, however, that applying its peculiar interpretation of the rule of Rex v. Foxcroft to all cases in which a statute requires the agreement of a majority of the body’s membership to pass legislation could do serious harm to the legislative intent. Such a rule greatly lessens the effect of such rules. The majority therefore makes a distinction between statutes that require the “concurrence” of such a majority and those that require the “affirmative vote.” The latter, it states, is the stricter requirement and does not allow for the fiction contained in Lord Mansfield’s dictum,-, the former, it contends, is a looser standard for which an abstention may be treated as a vote with the majority. This distinction is made despite the fact that Rex v. Foxcroft itself suggests no such distinction.

I do not agree that the word “concurrence” in the context of the Illinois Municipal Code is subject to such an interpretation. In Blakemore v. Brown (1920), 142 Ark. 293, 297, 219 S.W. 311, 312, the Supreme Court of Arkansas stated that “[t]he use of the word ‘concurring’ necessarily implied consent, evidenced in some overt way, and not a mere silent acquiescence or submission.” (Accord, Dillon v. Scofield (1881), 11 Neb. 419, 9 N.W. 554; State v. Vermont Emergency Board (1978), 136 Vt. 506, 394 A.2d 1360.) In Eubanks v. State (1911), 5 Okla. Crim. 325, 333, 114 P. 748, 752, the Criminal Court of Appeals of Oklahoma held that the words “concurrence” and “concurring” within the context of the State constitution and grand jury statute “mean ‘assent,’ or ‘consent,’ indicated by affirmative action on the part of the grand juror, by vote or ballot, showing direct approval.” Perhaps most important, however, is Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552, a case not unlike the one at bar, involving the treatment of an abstention in a city council vote. Citing Dillon and Blackmore, the court found the word “concur,” in the context of the Ohio statute requiring three-quarters of the members of the council to concur before certain public improvements could be made, to mean an actual vote for the proposition and not mere silent submission. (173 Ohio St. 338, 344, 182 N.E.2d 552, 556.) These cases solidly reject the majority’s contention, and I think they are supported by logic and good sense.

Rules of parliamentary procedure tend to be rigid and formalistic. There is an excellent reason for this: Little room exists for judgment calls when it comes to determining whether or not a particular item of legislation has been passed or not; the law must be clear. I find it incredible to believe that our legislature would deliberately throw a wrench into the workings of our local legislative bodies by drafting a rule for the passage of ordinances that would inevitably lead to conflicts over whether a concurrence of the requisite majority had been achieved. If an abstention can be construed as a concurrence, think what other actions could also be so construed — like not showing up for the meeting at all. Perhaps no formal vote need even be taken. As soon as a majority of the members clearly appear to be like-minded, should the bill pass? Such rules would obviously lead to legislative chaos.

Interestingly, the Illinois Constitution of 1970 uses the word “concurrence” often in describing requirements for various bodies in reaching decision. For example, the “concurrence” of four justices of the supreme court is necessary for a decision. (Ill. Const. 1970, art. VI, sec. 3.) During my tenure here, however, no one has ever suggested that an abstention should be counted with the majority, although there have been cases in which such a rule would have been decisive in preliminary vote taking. Four “yes” votes have always been thought to be required. Similar provisions appear in other parts of the Constitution. Ill. Const. 1970, art. IV, sec. 8(c) (the legislature), arts. VI, sec. 15(f) (the Courts Commission).

I think that the application of the rule the majority has derived from Rex v. Foxcroft to the situation at bar cannot be justified by interpreting the words “concurrence of a majority” to mean something less than the affirmative votes of a majority. The two cannot be treated differently. The issue must therefore be whether their rule can be applied to any case in which a statute requires a majority of the legislature’s total membership either to agree, concur or affirmatively vote in order to pass legislation. As stated above, the weight of authority is clearly against its application. (See, e.g., Van Hovenberg v. Holeman (1940), 201 Ark. 370, 144 S.W.2d 718; Van Cleve v. Wallace (1944), 216 Minn. 500, 13 N.W.2d 467; Ezell v. City of Pascagoula (Miss. 1970), 240 So.2d 700; Rockland Woods, Inc. v. Incorporated Village of Suffern (1973), 40 App. Div. 2d 385, 340 N.Y.S.2d 513; Steers Sand & Gravel Corp. v. Village Board (N.Y. Sup. Ct. 1954), 129 N.Y.S.2d 403; Davis v. City of Willoughby (1962), 173 Ohio St. 338, 182 N.E.2d 552; Caffey v. Veale (1944), 193 Okla. 444, 145 P.2d 961; State ex rel. Roberts v. Gruber (1962), 231 Or. 494, 373 P.2d 657.) To follow these cases and reject the use of a legal fiction to achieve the necessary consensus would, I believe, be in harmony with the purpose of the statute — to ensure that before ordinances are passed by a village board of trustees there is clear and express approval of the measure. (See Rockland Woods, Inc. v. Incorporated Village of Suffern (1973), 40 App. Div. 2d 385, 340 N.Y.S.2d 513.) The statute is designed to prevent passage of ordinances on a whim or when a majority of the whole number is unwilling to stand up and be counted as supporters of the measure.

The only argument the majority can muster against such precedent is one of practicality. If abstentions are not counted as concurrences, they may prevent any action by the legislative body. (See Northwestern Bell Telephone Co. v. Board of Commissioners (N.D. 1973), 211 N.W.2d 399, 404.) The power of an abstainer to prevent action, however, would not be any greater in this case than that of a member who votes “no.” Furthermore, to such an argument, the Supreme Court of Oregon has said:

“We are fully aware of the reasons of policy emphasized in some of the decisions which underlie the rule of Rex v. Foxcroft, that is to say, that it is the duty of members of a city council to vote and that they ought not ‘by inaction, prevent action by the board.’ [Citation.] It is quite as important, however, that a court does not close its eyes to the plain meaning of a statute or a charter provision in order to achieve a desired end.” (State ex rel. Roberts v. Gruber (1962), 231 Or. 494, 500-01, 373 P.2d 657, 660.)

That is exactly what the majority has done here.

I would affirm the appellate court’s judgment.

JUSTICE CLARK joins in this dissent.