author: JUSTICE SIMON JUSTICE CLARK,

text:
    (No. 57183.
    THE CITY OF SHELBYVILLE, Appellant, v. SHELBYVILLE RESTORIUM, INC., Appellee.

      Opinion filed June 17, 1983.

      Franklin E. Dove, of Shelbyville, for appellant.
    William L. Turner, of Shelbyville (James C. Craven, of Springfield, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

In this appeal by defendant, Shelbyville Restorium, Inc., a home builder, we are asked to decide whether the statute of limitations may be raised as a defense to an action by a municipality seeking money damages and an order compelling the defendant to construct certain streets in a subdivision. The circuit court of Shelby County ruled that it could and dismissed the action; the appellate court, in a Rule 23 order (87 Ill. 2d R. 23), held that the municipality was immune from the defense and remanded the cause for trial (106 Ill. App. 3d 1164).

The city of Shelbyville brought this action to enforce and recover damages under an ordinance which it passed in 1967 at the time it approved defendant’s subdivision plat and annexed the subdivision to the city. The complaint, filed in 1980, alleged that the 1967 ordinance required as a condition of annexation that certain streets should be constructed in the subdivision and that the city should bear none of the expense of constructing them, that the ordinance remains in effect, that the defendant has failed to construct many of the streets in question, that those streets which defendant has constructed did not meet the specifications set forth in the ordinance, and that the city eventually constructed or repaired the streets at great expense to itself. The first three counts sought money damages for expenditures which the city incurred or projected it would incur in remedying defendant’s omissions, while counts IV and V sought an order requiring defendant to construct certain streets on which work had not already begun and enjoining the sale by defendant of any unsold lots in the subdivision until such construction was completed. The defendant filed a motion to dismiss the complaint, asserting that it did not state a cause of action and also invoking the bar of the statute of limitations. The circuit court addressed only the latter contention; the appellate court, in reversing and remanding, similarly addressed only the claim involving the statute of limitations. The reversal was grounded on the common law rule that the statute of limitations may not be asserted against the State or its county or municipal subdivisions as plaintiffs in actions involving “public rights” (People ex rel. City of Chicago v. Commercial Union Fire Insurance Co. (1926), 322 Ill. 326, 332) and the appellate court’s conclusion that the rights sought to be vindicated by the city of Shelbyville were of a public character.

Defendant argues that because Illinois has expressly disavowed the concept of sovereign immunity both by decision of this court (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11) and in its 1970 Constitution (Ill. Const. 1970, art. XIII, sec. 4), the common law exemption from statutory limitations periods may no longer be invoked by municipalities of this State even where public rights are involved. Defendant’s position is that governmental immunity from limitations periods is a species of sovereign immunity, both kinds of immunity being vestiges, in their origin and effect, of the royal prerogative which derived from the maxim that the King could do no wrong. (In re Estate of Bird (1951), 410 Ill. 390, 397; Clare v. Bell (1941), 378 Ill. 128, 131.) Defendant argues that it would be anomalous for this court to hold that the former doctrine is still the law despite the abolition of its twin.

While sovereign immunity from liability and governmental immunity from statutes of limitation shared a philosophical origin and have the similar effect of creating a preference for the sovereign over the ordinary citizen, we do not believe that the abolition of the first of these doctrines requires abandonment of the second. At common law sovereign immunity derived from the idea that the King was the source of all rights and privileges and that, as a consequence, any right asserted by a citizen against the King was an assertion of rights against the source of rights and could not be entertained unless the King consented to the suit. The act of consent by the government was interpreted as a creation of the right on which the suit was based, and therefore came, even in this country, to be viewed as a condition precedent to the suit. (11 Haisbury’s Laws of England, par. 1401 (4th ed. 1976); see Feres v. United States (1950), 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153; Kawananakoa v. Polyblank (1907), 205 U.S. 349, 51 L. Ed. 834, 27 S. Ct. 526.) The doctrine of sovereign immunity from suit, while justified in this manner, went under the slightly misleading but popular maxim of “the King can do no wrong” (“Rex non potest peceare”), from which it was but a slight jump in logic to conclude that the King could not commit mistakes such as laches either (County of Piatt v. Goodell (1880), 97 Ill. 84, 88; United States v. Central Soya, Inc. (7th Cir. 1982), 697 F.2d 165, 166). This conclusion also entered our common law in the form of the maxim on which the city relies here: “time does not run against the King” (“nullum tempus occurrit regi”).

American courts in this century have viewed both doctrines as embodying a policy of protecting the public purse rather than as perpetuating philosophical notions of sovereign power and incapacity to err. However, their evolution in this regard was not parallel.

In discussing sovereign immunity from suit, one commentator observed that the doctrine was best viewed as preventing “the subjection of the state and federal governments to *** serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property.” (Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060, 1061 (1946).) Taken at its word, as it was in most cases, the doctrine continued to prevent all suits against the sovereign from going forward in the absence of consent, at least in the sovereign’s own courts (see Nevada v. Hall (1979), 440 U.S. 410, 421, 59 L. Ed. 416, 425, 99 S. Ct. 1182, 1188), regardless of the purpose of the activity in which the sovereign was engaging when it incurred the alleged liability. The consent, even where explicit, was often narrowly construed. See Jaffee v. United States (3d Cir. 1981), 663 F.2d 1226, cert. denied (1982), 456 U.S. 972, 72 L. Ed. 2d 845, 102 S. Ct. 2234.

While this court’s decision to discard sovereign immunity was motivated at least in part by a distaste for the inflexibility of the doctrine and its inamenability to rules of reason (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 16, 18), the inflexibility and the continued emphasis placed on consent to suit by courts adhering to sovereign immunity was the inevitable result of viewing the doctrine as necessary to preserve the government’s control over its officers and instrumentalities from external interference.

By contrast, although the doctrine of immunity from statutes of limitation “developed in England as a royal prerogative, it is supported in modem law by the policy judgment that the public should not suffer because of the negligence of its officers and agents” in failing to promptly assert causes of action which belong to the public. (State ex rel. Board of University & School Lands v. Andrus (8th Cir. 1982), 671 F.2d 271, 274, rev’d on other grounds sub nom. Block v. North Dakota ex rel. Board of University & School Lands (1983), 461 U.S __, 75 L. Ed. 2d 840, 103 S. Ct. 1811; see also Guaranty Trust Co. v. United States (1938), 304 U.S. 126, 132, 82 L. Ed. 1224, 1228, 58 S. Ct. 785, 788-89; United States v. Central Soya, Inc. (7th Cir. 1982), 697 F.2d 165, 166; 34 Am. Jur. Limitation of Actions secs. 388 through 399, and particularly at page 301 (1941).) In accord with the rationale, the practice in Illinois has been to determine whether the right which the plaintiff governmental unit seeks to assert is in fact a right belonging to the general public, or whether it belongs only to the government or to some small and distinct subsection of the public at large. See, e.g., Winakor v. Annunzio (1951), 409 Ill. 236, 249 (belated change of variable contribution rate by Department of Labor permitted because it was in aid of the public purpose of relieving unemployment); Clare v. Bell (1941), 378 Ill. 128, 130-31 (action to collect penalties on delinquent property taxes allowed to proceed, apparently because the right to collect them was “public”); People ex rel. City of Chicago v. Commercial Union Fire Insurance Co. (1926), 322 Ill. 326 (action to impose city license fee on a foreign fire insurance company held “public” because the proceeds would benefit city’s fire department); City of Chicago v. Dunham Towing & Wrecking Co. (1910), 246 Ill. 29 (city’s interest in recovering damages for destruction of bridge which it was under obligation to maintain held “private”); see generally 34 Am. Jur. Limitation of Actions sec. 395, at 309-10 (1941).

The question of who would be benefited by the government’s action and who would lose by its inaction is of paramount importance in statute-of-limitations immunity cases, while it is not central to the modem rationale underlying sovereign immunity and is not even asked in the majority of cases involving that doctrine. The purpose of the two doctrines, as we understand them, is different: the former is designed to preserve public rights when the government is slow to assert them on the public’s behalf, while the latter is used to promote the autonomy of public bodies as entities by insulating them from liability for their actions. They are separate doctrines, and we do not interpret either article XIII, section 4, of the 1970 Constitution or bur decision in Molitor as requiring abolition of governmental immunity from statutes of limitation.

The seeming equation by this court of sovereign and limitations immunity in dictum in In re Estate of Bird (1951), 410 Ill. 390, 397, furnishes no authority for the result which defendant urges, as that case did not require or depend on a comparison of the doctrines as the instant case does. Nor are we convinced that abandonment of government immunity from statutes of limitation would be wise. Inasmuch as citizens who share a public right which has been violated may be unable in certain cases to bring suit on their own behalf while the government has a representative interest in the controversy (Clement v. Chicago Park District (1983), 96 Ill. 2d 26; see Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 516, 524-25 (individual residents of neighborhood lacked standing to sue for landmark designation of building)), abolition of the government’s immunity from limitations defenses would expose these citizens to the harsh consequences of neglect by officials over whose actions they had no control. Long delays by the government in instituting suit, of course, cause harm to the defendant and are in the interest of no one; however, we are unwilling to change a well-established rule of law so as to leave citizens who have suffered an injury remediless or make them wait until the next election for their “remedy.”

Defendant argues next that regardless of whether we adhere to the rule that municipalities are immune from limitations defenses in asserting public rights, the city of Shelbyville is not asserting such a right and thus must be barred from bringing suit. This argument is based on City of Chicago v. Dunham Towing & Wrecking Co. (1910), 246 Ill. 29, in which this court decided that an action by a city seeking damages for loss of a bridge which constituted part of a public street was an attempt to vindicate “private” rights only and was barred by the statute of limitations. The public was viewed as having an interest only in its ability to use the street, as distinguished from the ability of the city to maintain it in working order.

We disagree with the position advanced by the defendant. It is apparent that the safety of all persons who have occasion to use the streets at issue here will depend on the workmanlike construction and maintenance of these streets. Insofar as it is the continuing responsibility of cities to ensure such construction and maintenance for the use of the public (Ill. Rev. Stat. 1969, ch. 24, par. 9—1—1 et seq.), the inability of the city of Shelbyville to enforce its annexation agreement or compel payment by the defendant will affect the city’s finances and may impair its ability to build or oversee the construction or maintenance of streets within its jurisdiction in the future. See Greenwood v. Town of LaSalle (1891), 137 Ill. 225, 229 (municipality’s right to collect local property taxes ruled “public” because the “taxes may be levied for purposes in which the public, generally, are directly interested, such as ‘constructing or repairing roads, bridges or causeways’ within the town”).

This, we believe, is sufficient to render the city’s interest in bringing this lawsuit “public.” While we acknowledge that Dunham Towing holds to the contrary, we believe that it is consistent with later authority to regard such exercises of civic initiative as being in the interest of the general public. (See People ex rel. City of Chicago v. Commercial Union Fire Insurance Co. (1926), 322 Ill. 326, 332-33 (action to compel insurance company to report local receipts for purposes of a city license tax allowed to go forward; court found that the purpose of the tax, the funding of the city’s fire department and a civic fireman’s pension fund, was “public” because the maintenance of a fire department was an exercise of the police power granted to cities for the purpose of ensuring the public safety, health and welfare); cf. Clare v. Bell (1941), 378 Ill. 128, 131 (action to collect county property taxes held to be public because “the public revenues are involved”).) Similarly, our view in this case is that a cause of action for recovery of damages for building and maintaining streets which should have been built in a proper manner by the defendant is “public” because the defendant, by failing to perform its alleged obligation, has necessitated the expenditure of the public revenues for that purpose. We overrule Dunham Towing to the extent that it holds otherwise, for we regard the distinction that decision attempted to draw between title to the public ways and claims for compensation for damage done to them as unrealistic and overly technical.

We find unpersuasive the defendant’s suggestion that because the maintenance of streets was held to be a function not subject to sovereign immunity in this State (9 Ill. L. & Prac. Cities, Villages, and Other Municipal Corporations sec. 491, at 43 (1954) (“[m]unicipal corporations have no right to place obstructions in their streets which will interfere with the ordinary and usual use thereof by the traveling public, and they are liable to respond in damages to a person injured, while in the exercise of ordinary care, in consequence of their negligence in permitting dangerous obstructions to remain on the public streets”)), it should be similarly held “private” for purposes of limitations immunity. We have already discussed the differences between the two kinds of immunity. We feel no compulsion to regard the construction and maintenance of public streets as a “private” matter for statute-of-limitations purposes simply because the city would be liable in tort for its negligence in connection therewith. Nor do we find any logic in allowing the designation of the city’s action as “public” or “private” to be controlled by the origin of the city’s rights in a private contract or local ordinance (People ex rel. City of Chicago v. Commercial Union Fire Insurance Co. (1926), 322 Ill. 326, 332) or by the fact that part of the relief sought is in the form of damages. We hold that the interest of the city of Shelbyville in the construction of streets in the defendant’s subdivision in a workmanlike manner and under the payment terms allegedly agreed upon is public in nature, and we affirm the appellate court’s decision in this regard.

Defendant argued alternatively in the circuit and appellate courts that the complaint should have been dismissed for failure to state a cause of action inasmuch as the proviso in the annexation agreement which purportedly obligated defendant to pay for the streets cannot be found in the record or in the ordinance itself. This argument was of necessity not addressed by the trial court, which dismissed the action as time-barred, and it was not addressed by the appellate court either, even though it remanded the cause. Although defendant requests us to pass on the motion, and although the appellate court appears to do this on occasion in cases such as this (e.g., Lundstrom v. Winnebago Newspapers, Inc. (1963), 42 Ill. App. 2d 306, 311), we remand the cause to the circuit court with instructions to consider the motion to dismiss.

Affirmed and remanded, with directions.

JUSTICE CLARK,

dissenting:

The court today has said that it did not believe that the abolition of sovereign immunity in this State meant that governmental immunity from statutes of limitations was also abolished. The detailed delineation of the evolution of what the majority construes as different doctrines is irrelevant in view of section 4 of article XIII of the 1970 Constitution, which provides that “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

Pursuant to section 4 of article XIII, the legislature enacted Public Act 77—1776 (Ill. Rev. Stat. 1979, ch. 127, par. 801), which provides that the State of Illinois may not be made a defendant or a party in any court except as set forth in the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.1 et seq.). While the legislature chose to reinstate a more limited avenue of relief for claims against the State of Illinois in the form of the Court of Claims Act, no such action was taken concerning municipalities. Today we are allowing the city of Shelbyville to hide beneath a cloak of immunity that the Constitution of 1970 eliminated and that the General Assembly chose not to provide for municipalities. I feel that the majority winds its way around a very thin analytical path while ignoring a plain and straightforward reading of the 1970 Constitution.

The majority attempts to draw a distinction between the purpose of immunization of the sovereign against statute-of-limitations defenses and the purpose of immunizing the sovereign from claims made against it. In my opinion, it is a distinction without merit.

The purpose of article XIII, section 4, of the 1970 Illinois Constitution’s abolition of sovereign immunity was to repudiate the sovereign’s preference in common law over its citizens and thereby debunk the myth that “the king can do no wrong.”

It is not reasonable then to construe section 4 of article XIII as allowing the proposition that “time does not run against the king” to remain in effect.

That is, however, precisely the construction given by the majority in permitting the city of Shelbyville to bring this action 13 years after the event, and seven years after the statute of limitations had run.

I believe that, in abolishing local government’s immunity from suit, the framers of the 1970 Constitution clearly intended that the sovereign and citizens be on equal footing. If the city of Shelbyville can raise the defense of improper delay against a citizen suing it, there is no legitimate reason why a citizen being sued by the city of Shelby-ville should not be able to raise the same defense. The majority today has extended to the city of Shelbyville that which the legislature refused to and the result of which is to subject the defendant to a suit that it would not face had the plaintiff been any private plaintiff in this State. I respectfully dissent from such an unfounded result.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 56361.
    JERALD P. MENOZZI, Appellant, v. THE INDUSTRIAL COMMISSION et al. (PTO Services, Inc., Appellee).

      Opinion filed June 17, 1983.

      Cirricione, Block, Krockey & Cernugel, P.C., of Joliet (Michael D. Block and Michael N. Gorcowski, of counsel), for appellant.
    Raymond M. Simard, of Discipio, Martay & Caruso, of Chicago, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This is an appeal from a decision of the circuit court of Will County confirming an Industrial Commission award of workers’ compensation benefits to the petitioner, Jerald Menozzi. We must decide whether the circuit court ruled properly in confirming the award instead of remanding the cause to the Industrial Commission.

Jerald Menozzi was a truck driver for PTO Services, Inc., the respondent in this case. His job involved heavy lifting. On March 3, 1978, he slipped off the end of a truck while he was loading it. As he fell he struck the middle portion of his lower back on a piece of angle iron and landed on his right arm. He felt pain in his back and arm which continued with such intensity that he did not return to work. Menozzi consulted several doctors, four of whom submitted reports which appear in the record. PTO paid workers’ compensation benefits through April 7, 1979. An arbitrator awarded Menozzi temporary total disability benefits through November 26, 1979, and permanent partial disability benefits based on a loss of 50% of the man as a whole. After receiving two additional medical reports into evidence, the Industrial Commission ruled that Menozzi’s temporary total disability extended only through April 1979, the month in which the employer had stopped benefits, and awarded permanent partial disability based on 15% loss of the use of the right arm and 8% loss of the man as a whole. It ordered payment of $230.05 for 174% weeks and set the bond for appeal by PTO at $40,100.

PTO filed a petition for correction of clerical error, alleging that sections 8(e) and 8(d)(2) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, pars. 138.8(e), 138.8(d)(2)) provided for only 75V4 weeks’ compensation for a 15% loss of the use of an arm and an 8% loss of the man as a whole. The Industrial Commission made this correction but left the bond at $40,100. Menozzi immediately filed his petition for correction of clerical error, arguing that the amount of the bond no longer bore any relation to the amount of the award and that entry of a 28% rather than an 8% figure for loss of the man as a whole would correct the discrepancy and justify the original award of 174% weeks. The Industrial Commission took no action on Menozzi’s petition, and he filed a writ of certiorari in the circuit court. The court, after postponing its decision twice on Menozzi’s request, confirmed the amended award of the Commission and found no clerical error warranting a remand.

Menozzi’s position on this appeal is that the Commission’s award made sense neither in its original form nor as amended, and that inasmuch as his petition for correction was not acted upon the amount of the award was never finally determined by the Commission and was not ripe for an appeal. He argues that the $40,100 bond is roughly sufficient to guarantee payment of an award of either $40,316.26, the amount that would be due for a 28% loss of the man as a whole and a 15% loss of the use of an arm, or $40,201.24, the amount due on the original award of $230.05 per week for 1743/4 weeks (see Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)(2)), but is much higher than the amount required to guarantee payment of $17,311.26, the amount owing on the amended award of $230.05 per week for 75V4 weeks. Menozzi agrees with PTO that the original order of the Industrial Commission was in need of correction, but argues that the order subsequently entered by the Commission was also internally inconsistent. His position is that an order reflecting 174?k or 175V4 weeks’ temporary total incapacity would be consistent with the amount of the bond required by the Commission and in accord with the law and the evidence, and that the circuit court should not have entertained the appeal until the Commission had allowed or affirmatively denied his petition to correct the award.

Section 19(f) of the Workers’ Compensation Act reads:

“The decision of the Commission acting within its powers, according to the provisions of paragraph (e) of this Section shall, in the absence of fraud,- be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award on arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for appeal or review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f).)

This court has held that “[t]he purpose of section 19(f) is to provide the Commission an opportunity to correct its own clerical or computational errors so as to avoid the necessity of having the circuit court review such errors. *** It is apparent that the statute, when read as a whole, vests con-turning jurisdiction in the Commission to correct its alleged errors and that its decision is not final until the Commission determines whether or not to correct such errors.” (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 186.) In International Harvester this court held, in a divided opinion, that an employer who had filed a petition with the Industrial Commission to correct an error could not seek a writ of certiorari until the Commission acted upon the petition. In Zbilski v. Industrial Com. (1971), 48 Ill. 2d 131, the Commission notified the parties that it wished to correct its order but never issued a corrected decision because the claimant failed to return his copy of the original decision. This court held that the circuit court was “not in a position to review the decision of the Commission until a final corrected decision” was entered. (48 Ill. 2d 131, 134.) The court in later cases interpreted Zbilski as being a jurisdictional holding, standing “for the proposition that jurisdiction will not attach in the circuit court until the Commission renders its final decision. This is so whether the Commission ultimately allows or denies the relief requested in a petition to correct errors.” (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 187; see also PPG Industries, Inc. v. Industrial Com. (1982), 91 Ill. 2d 438, 443-44.) We believe that the observations made in those cases apply with equal force here.

PTO cites no cases which hold that the circuit court could properly act in this type of situation, but urges that we adopt the position advanced by the dissents in International Harvester that section 19(f) was not designed to create a motion for rehearing procedure at the Industrial Commission level but was intended merely to allow the Commission to correct purely clerical or computational, as opposed to substantive, errors. PTO also argues that if the legislature had intended the result reached by the majority in International Harvester and sought by Menozzi in this case, the word “motion” would have been used in place of the word “correction” in the last sentence of section 19(f). Finally, PTO suggests that Menozzi’s petition to correct errors was in essence denied by the Commission’s decision, on the day the petition was filed, to make the corrections PTO had urged, and that for that reason the Commission did not have to take any further action for its decision to be considered final.

We reject the first two of these contentions; they have already been settled by this court. Both contentions were advanced in the dissents in International Harvester in 1978 and were, apparently, considered and rejected by a majority of this court. The majority’s interpretation of section 19(f) as requiring appellants to wait for petitions to correct errors to be acted on, regardless of the technical characterization of the alleged error as “clerical” or “substantive,” is apparent from a reading of International Harvester: the error urged for correction there was the failure to credit an earlier payment of nonoecupational benefits against an award of benefits under workers’ compensation. This court reaffirmed that interpretation of section 19(f) in PPG Industries, Inc. v. Industrial Com. (1982), 91 Ill. 2d 438, and again in Garcia v. Industrial Com. (1983), 95 Ill. 2d 467. We also note that one of the dissenting justices in International Harvester stated that section 19(f) “should not be interpreted so as to further delay the disposition of the claims of injured employees” (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 189 (Goldenhersh, J., dissenting)); here, however, we are dealing with a request by such an employee for a clarification of an award, rather than a request by the employer as in International Harvester. Moreover, International Harvester remains sound as a rule of practice. A party who is convinced that an order of the Industrial Commission contains a substantial error or inconsistency should be allowed to request a correction, as the statute plainly allows him to do. Such corrections serve the purpose of reducing the number of issues that will be urged for review in the courts, and remove the need for having the circuit court perform the trier of fact’s job of deciding what the error was or how an inconsistency should be resolved. To permit review to go forward before the Industrial Commission acts on such a request frustrates this purpose; we see no reason why the Industrial Commission should not be required to consider and respond to such requests.

We do not believe that the Commission’s correction of its original order to reflect the changes PTO had urged served as a denial, implicit or otherwise, of Menozzi’s petition. That petition, as we have noted, had not been filed until the day the Commission granted PTO’s petition, and there is nothing in the record to indicate that at the time of its decision the Commission was even aware of Menozzi’s position, which was that the error was in the percentage figure for loss of the man as a whole rather than in the number of weeks for which compensation was due. This argument was reinforced by the Commission’s failure to change the amount of the bond to reflect a reduced liability, and is not significantly discredited by the slight discrepancy that would exist between the 1743/4 weeks’ disability in the original award and the 1751/4 weeks that would result from the correction Menozzi suggests was proper. We believe that Menozzi’s petition raised a legitimate question concerning the findings and intent of the Industrial Commission. The amended order remained confusing, and explanation or clarification of this confusion would have involved no hardship on the Commission or the parties.

Because the Industrial Commission failed to act upon the inquiry raised by Menozzi, we vacate the decision of the circuit court and remand the cause to the Industrial Commission for action on Menozzi’s petition without expressing an opinion as to what that action should be.

Judgment vacated; cause remanded, with directions.


author: JUSTICE CLARK JUSTICE SIMON,

text:
    (No. 56516.
    MERLE ROBERTS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Drovers National Bank of Chicago, Appellee).

      Opinion filed June 17, 1983.

      Richard R Bogusz, Ltd., of Chicago (Richard R Bogusz and Thomas F. Strzalka, of counsel), for appellant.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (Francis J. Lynch, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

On April 1, 1977, Merle E. Roberts brought this action before the Industrial Commission pursuant to section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(h)) seeking recovery for an alleged increased disability resulting from a prior industrial accident. The Industrial Commission dismissed the action for want of prosecution.

The petitioner appealed the decision of the Industrial Commission to the circuit court of Cook County, which affirmed the dismissal. The petitioner then appealed directly to this court (87 Ill. 2d R. 302(a)).

On December 18, 1979, the case was called by Commissioner Duncan and no one appeared on behalf of either side. The transcript shows that Commissioner Duncan said that because the case had been continued many times before, and since he had previously stated that there would be no more continuances, he was going to dismiss the case with prejudice.

In proceedings before the Industrial Commission to vacate dismissals for want of prosecution and to reinstate claims, the burden is on the petitioner to allege and prove facts in order to justify reinstatement. It is within the sound discretion of the Commission to grant or deny reinstatement. Cranfield v. Industrial Com. (1980), 78 Ill. 2d 251, 255; Shiffer v. Industrial Com. (1973), 53 Ill. 2d 519, 521.

Mr. Roberts asserts that the Commission abused its discretion in dismissing the petition because petitioner alleges that notices were not sent to the parties advising them of the hearing date and that counsel was unaware that a hearing was scheduled on December 18, 1979.

The order of the Industrial Commission dismissing the section 19(h) petition was entered on December 24, 1979. The order recites on its face that “due notice given this cause came on for hearing before the Commission on December 18, 1979.”

The petitioner asserts that he has met his burden of proof to justify vacating the Industrial Commission order that dismissed the action for want of prosecution, by demonstrating that no one appeared on behalf of either side on December 18, 1979. The evidence presented, that neither party appeared, does not prove that proper notice was not given.

According to the Industrial Commission order of December 24, 1979, proper notice was given. We therefore find that the dismissal of the claim represented a proper and sound exercise of discretion by the Industrial Commission.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

JUSTICE SIMON,

dissenting:

The record in this case reveals that shortly after the original petition was dismissed for want of prosecution the claimant filed a petition to reinstate which the Industrial Commission denied. This denial was improper for the reason set forth below, and I would remand the cause to the Commission for reinstatement pursuant to this court’s supervisory authority.

This court has held that section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a) gives plaintiffs an absolute right to refile actions which have been dismissed for want of prosecution by circuit courts. (Franzese v. Trinko (1977), 66 Ill. 2d 136; see also Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110 (order dismissing cause for want of prosecution held not appealable because of right to refile); Flores v. Dugan (1982), 91 Ill. 2d 108 (same).) Section 24 is not limited to common law actions filed in circuit courts, however, but applies “[i]n the actions specified in this Act or any other act or contract where the time for commencing an action is limited.” (Ill. Rev. Stat. 1979, ch. 83, par. 24a.) Proceedings before the Industrial Commission are specified in an act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.), and the time for commencing them is limited (see Ill. Rev. Stat. 1979, ch. 48, par. 138.19(b)). There is no reason I can see why these proceedings should not be covered by and subject to the provisions of that Limitations Act. The claimant’s petition to reinstate his action previously dismissed for want of prosecution was filed within one year of the dismissal and should have been granted, as the Act directs.

I do not agree that whether reinstatement should have been permitted is within the sound discretion of the Industrial Commission, nor do I believe that there is any burden on the petitioner to justify reinstatement. The Industrial Commission is controlled by section 24 of the Limitations Act in the same way a circuit court would be. To the extent that the two opinions cited by the majority hold to the contrary, I respectfully suggest that either they were incorrectly decided or the court was not called upon to consider the relevancy of section 24, as it was not in this case.


author: JUSTICE WARD JUSTICE GOLDENHERSH,

text:
    (No. 57050.
    THOMAS L. FREGEAU et al., Appellees, v. GLOVER GILLESPIE, Appellant.

      Opinion filed June 17, 1983.

      Adrienne W. Albrecht, of Nutting, Thacker, Sacks, Ruch & Albrecht, of Kankakee, for appellant.
    Christopher W. Bohlen, of Blanke, Norden, Barmann & Bohlen, P.C., and William O. Schmidt, all of Kankakee, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

On March 6, 1979, Thomas L. Fregeau and his wife, Patricia, filed a civil complaint for assault and battery against Glover Gillespie in the circuit court of Kankakee County. The complaint alleged that the defendant struck Thomas Fregeau with a wrench on February 18, 1979, causing severe injury. Fregeau asked for compensatory and punitive damages, and his wife sought damages for loss of consortium. In his answer, the defendant, as an affirmative defense, asserted that both Thomas Fregeau and he were employed at a General Foods plant in Kankakee at the time of the alleged occurrence, and in regard to the claimed occurrence, Fregeau had filed an application for adjustment of claim with the Industrial Commission. The defendant then moved for summary judgment, which motion was granted on August 11, 1981. Attached to the motion was a deposition of Fregeau, in which he acknowledged filing for and receiving workmen’s compensation benefits from General Foods. The appellate court, with one justice dissenting, reversed, holding that the decision to accept workmen’s compensation benefits did not preclude the plaintiffs from bringing an action against the co-employee defendant for the intentional tort. (106 Ill. App. 3d 224.) We granted the defendant’s petition for leave to appeal under Rule 315 (73 Ill. 2d R. 315).

The parties informed us in oral argument that the workmen’s compensation proceeding was pending before the Industrial Commission. The only matter in dispute before the Commission, however, was the nature and extent of the injuries. The employer had already paid temporary benefits and medical expenses, and had agreed that the accident is compensable under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.).

We consider that the judgment of the appellate court, as the dissenting justice observed (106 Ill. App. 3d 224, 229 (Stouder, J., dissenting)), directly conflicts with a recent holding of this court, and it must be reversed. In Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, this court considered whether a cause of action for the intentional infliction of emotional distress could be brought by an employee against his employer, the officers of the employer, and a co-employee, in view of the exclusivity provisions of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). In relevant part, section 5(a) of the Act provided, as it does now:

“(a) No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a).)

Section 11 of the Act stated then and does now:

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act.” Ill. Rev. Stat. 1979, ch. 48, par. 138.11.

The plaintiff Collier was an employee of Wagner Castings and became ill while at work. William A. Stogner, a nurse or medical attendant at the plant, allegedly provided little assistance to the plaintiff, and though the plaintiff had symptoms of a heart attack, Stogner told him that it was only indigestion. The plaintiff alleged that Stogner’s conduct was extreme and outrageous, and for the purpose of the exclusivity issue before it, this court assumed that the complaint was sufficient to set out a cause of action for intentional infliction of emotional distress.

The plaintiff had already released Wagner Castings from all liability under the Workmen’s Compensation Act through a lump-sum settlement which had been approved by the Industrial Commission. The defendants contended that even if the complaint did allege a cause of action, it could not proceed to trial in view of the exclusivity provisions of the Act and the settlement agreement.

This court held that the action could not be maintained. In interpreting the exclusivity sections we have quoted above, the court stated: “To escape the bar of these sections, plaintiff would have to prove either that the injury (1) was not accidental (2) did not arise from his or her employment, (3) was not received during the course of employment or (4) was noncompensable under the Act.” (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 237.) The court observed that emotional distress could be a compensable injury under the Act, and that according to the allegations the injury arose out of and in the course of employment. The dispositive question, then, was whether the injuries were accidental.

The court framed the question:

“An ambiguity in the law arises from cases in which the term ‘accidental’ has been defined. (See 2A A. Larson, Workmen’s Compensation sec. 68.12 (1976).) An injury must be traceable to a definite time, place and cause to be considered accidental within the meaning of the Act. (Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244, 249; Johns-Manville Corp. v. Industrial Com. (1975), 60 Ill. 2d 221, 225.) Injuries inflicted intentionally by a coemployee are compensable under the Act as long as those injuries arose out of and in the course of the employment (Associated Vendors, Inc. v. Industrial Com. (1970), 45 Ill. 2d 203), because the injury is accidental from the employee’s point of view. The ambiguity arises from the obvious fact that the injury was intentionally, not accidentally, inflicted.” 81 Ill. 2d 229, 238.

In regard to the employer and its officers, the court said that because the employer did not direct, encourage or commit an intentional tort, an action could not be maintained against the employer and its officers. From the employer’s standpoint, the court observed, an assault was simply another industrial mishap.

As to the co-employee Stogner, however, the issue was different, in view of the fact that it was charged that he was an intentional tortfeasor. This court noted that it had already been decided that the basic purpose of the Workmen’s Compensation Act, to place the costs of industrial accidents upon industry, prohibited an action by an employee under the Act against a co-employee based upon the co-employee’s negligence in the course of employment. (Chmelik v. Vana (1964), 31 Ill. 2d 272; Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618.) The bar also applied to actions for wilful and wanton negligence. (Sjostrom v. Sproule (1965), 33 Ill. 2d 40 (the facts are set out at 49 Ill. App. 2d 451 and 34 Ill. App. 2d 338).) This court had not yet, though, considered whether an employee could maintain an action against a co-employee for an intentional tort arising out of and in the course of employment.

The court then explained:

“It is not necessary that we address that question here, for we deem that where an employee injured by a coemployee has collected compensation on the basis that his injuries were compensable under the Act, the injured employee cannot then allege that those injuries fall outside the Act’s provisions. We base this conclusion not only upon a fear of double recovery (Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 94), but also upon our desire to prevent the proliferation of litigation. (See Adams v. Pearson (1952), 411 Ill. 431, 436-37.) Since this plaintiff has collected compensation pursuant to an agreement executed in lieu of a claim and approved by the Industrial Commission, giving that settlement the status of an award (Dyer v. Industrial Com. (1936), 364 Ill. 161, 163, Ahlers v. Sears Roebuck Co. (1978), 73 Ill. 2d 259, 265), he is now precluded from suing for civil damages.” 81 Ill. 2d 229, 241-42.

We recently quoted much of the above passage with approval in Rhodes v. Industrial Com. (1982), 92 Ill. 2d 467, 471, where we held that if an employee has been compensated for an injury through a common law action, he cannot then recover under the Workers’ Compensation Act for the injury. We judged that the reasoning of Collier was applicable. In Rhodes we stated that while an employee, out of caution or uncertainty, may file a common law action against an employer, though he has already filed a workers’ compensation claim, he cannot recover in both actions because the design of the Act “was to serve as a substitute for an employee’s common law right of action and not as a supplement to it.” 92 Ill. 2d 467, 471.

Too, we recently invoked the reasoning of Collier in Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441, 451. There we held that a worker’s tort action against his employer, which was founded upon a claim of the tort of outrage because of “vexatious delay” in the handling of the plaintiff’s workmen’s compensation claim, could not be maintained in view of the plaintiff’s recovery for the underlying compensation claim. We said that to permit the bringing of the common law action in the face of the fact that relevant statutory penalties are provided for in the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.19(k), 138.19(l) would invite an indefinite prolonging of litigation and a risk of double recovery that the legislature sought to avoid in enacting the compensation system to replace common law remedies.

We perceive no ground for distinguishing Collier from the case here. The appellate court, which referred to Collier at the conclusion of its opinion, said that Collier was not applicable because here, dissimilar from what occurred in Collier, “Fregeau’s bludgeoning was unequivocally intentional and nonaccidental.” (106 Ill. App. 3d 224, 229.) The appellate court stated further that the objectives of preventing double recoveries and the proliferation of litigation, with which this court was concerned in Collier, would not be served by dismissing Fregeau’s suit. The court said that any recovery by Fregeau would be subject to an employer’s right of reimbursement under the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b)), and the court said that any proliferation of litigation would be avoided by the deterrent effect of permitting such a suit in tort.

Though purporting to distinguish Collier, it appears that the appellate court did no more than express dissatisfaction with the holding and frame what it deemed to be a preferable result. The attempt to distinguish Collier on the ground that the act here was unquestionably intentional was wide of the mark, because this court in Collier made the explicit assumption that the complaint there properly stated a cause of action for an intentional tort. The appellate court’s statement that the availability of the employer’s right of reimbursement and the deterrent effect of permitting the tort action would avoid the adverse consequences that this court in Collier was fearful of seems to be a rejection of the reasoning in Collier, rather than an attempt to distinguish the holding.

We would note that the legislature has not changed the Act in regard to this question since Collier was decided three years ago. It might have done so if that interpretation had been contrary to the legislative intendment.

Too, we observe that the exclusivity provision in section 5(a) operates not only to prohibit an action by the employee, but also by “any one wholly or partially dependent upon him *** or any one otherwise entitled to recover damages for such injury.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.5.) With near unanimity courts interpreting exclusivity provisions with this or comparable language have held that the provisions preclude actions by a spouse of the employee for loss of consortium. 2A A. Larson, Workmen’s Compensation sec. 66.20 (1982).

The employee here chose to obtain compensation under the Act, which was designed to provide speedy recovery without proof of fault for accidental injuries. He is barred under the holding in Collier from bringing an action against his co-employee for civil damages.

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

Appellate court reversed; circuit court affirmed.

JUSTICE GOLDENHERSH,

dissenting:

For the reasons set forth in the majority opinion of the appellate court I would affirm the judgment of the appellate court and therefore dissent.

JUSTICE SIMON joins in this dissent.


author: JUSTICE MORAN

text:
    (No. 57342.
    BAY STATE INSURANCE COMPANY, Appellee, v. GERALD WILSON et al. (Gerald Wilson, Appellant).

      Opinion filed June 17, 1983.

      Jeanne Sathre and Mark Glass, of Carr, Korein, Kunin, Schlichter & Brennan, of East St. Louis, for appellant.
    Michael J. Nester, of Donovan, Hatch & Constance, P.C., of Belleville, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Bay State Insurance Company, filed a declaratory judgment action in the circuit court of Madison County against James Johnson (Johnson), plaintiff’s insured, and Gerald Wilson, hereafter defendant. The suit was commenced to determine plaintiff’s obligation under a $25,000 homeowner’s insurance policy issued to Johnson. Defendant filed a counterclaim alleging plaintiff negligently or in bad faith refused an offer to settle a tort claim for the limits of its policy prior to a previously entered judgment against Johnson.

The trial court held there was coverage under the policy, found plaintiff guilty of bad faith and negligence, and rendered judgment in favor of defendant. A majority of the appellate court reversed, finding, as a matter of law, that there was no coverage under the policy. (108 Ill. App. 3d 1096.) We granted defendant leave to appeal.

From our review of the record, we find only one question need be resolved: Did the appellate court err in concluding, as a matter of law, that plaintiff’s insurance policy did not provide coverage for the injury here involved?

The facts are adequately stated in the appellate court opinion and will be reiterated here only to the extent necessary to discuss the issues presented. On August 21, 1972, defendant, and two of his friends, agreed to help his girlfriend move from her apartment in the basement of Johnson’s home. She had previously informed Johnson that she intended to move. They arrived at the apartment during daylight hours and found the doors and windows locked. At the time his girlfriend was visiting a neighbor, so defendant attempted to gain access through a window. Johnson heard a noise, looked down from his upstairs window and asked what the three were doing. Defendant said he came for the furniture and asked him to come down and open the door. Although he had seen defendant at the apartment on previous occasions, Johnson refused and told the men to leave the premises. He disappeared from the window, got his shotgun, and went outside to confront them.

The other two men hurriedly left when they saw him with the gun. Defendant testified he told Johnson he was leaving, turned, took a step or two, and was shot in the back. Defendant was unarmed. Johnson testified that he told defendant to leave several times to no avail, that defendant turned toward him and “made a flash” out of his pocket with his right hand, and that that is when he shot him. Defendant’s girlfriend said she saw the occurrence from the neighbor’s apartment. She corroborated defendant’s version.

Johnson was indicted for attempted murder. Subsequently, the charge was reduced to aggravated battery and he was convicted of that crime in a bench trial.

In December 1972 defendant filed a one-count complaint in tort for damages against Johnson alleging a malicious, intentional, and felonious assault. Johnson’s personal attorney filed a responsive pleading and tendered the defense of the suit to plaintiff. However, plaintiff refused to defend the action, because the complaint alleged an intentional act for which there was no coverage. The policy contained an exclusionary clause in the liability section which provided in part: “[T]he policy does not apply *** to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” (Emphasis added.)

Defendant then amended his complaint, adding two other counts. Count II alleged Johnson was negligent in assessing a need for self-defense when he shot defendant. Count III averred he was reckless and wanton in making that assessment. Subsequently, plaintiff provided counsel to defend Johnson, under a reservation of rights, with respect to counts II and III.

In January 1975 defendant offered to settle the case for the $25,000 policy limit. Plaintiff refused and, through other counsel, filed the instant declaratory judgment action to determine whether its policy provided coverage for the shooting. Defendant then voluntarily dismissed count I of his complaint, and the case went to trial on counts II and III. After a bench trial, judgment was entered for defendant on count III for $100,000 against Johnson.

Defendant then filed an answer and a counterclaim in the instant case. Further action was stayed while Johnson appealed the judgment in the personal injury case. The appellate court, by an order, affirmed that judgment and this court denied leave to appeal.

In 1977, Johnson died and his administratrix assigned his rights against plaintiff to defendant. Upon plaintiff’s motion, the declaratory judgment and counterclaim were severed for trial. At a bench trial on the declaratory judgment, the parties stipulated that Johnson intentionally shot defendant with a reckless and wanton belief that he was acting in self-defense. Over defendant’s objection, plaintiff submitted the transcript of Johnson’s criminal conviction to further substantiate the position that Johnson’s evaluation of self-defense was reckless, unfounded and without merit. The trial court also had the transcript of the personal injury case before it. The court found: (1) Johnson’s primary intent was self-defense rather than injury to Wilson; (2) neither wilful, wanton nor reckless misconduct amounts to a specific intent to cause injury; and (3) Johnson lacked the “specific intent” to harm Wilson required to bring his actions within the exclusionary clause. As a result, the trial court ruled the policy covered the shooting incident.

In a separate bench trial on the counterclaim, the court found the assignment of Johnson’s rights to defendant was valid. It also ruled that plaintiff wrongfully refused to settle the case within the policy limits. Accordingly, the trial court, in the case before us, ordered plaintiff to pay to defendant the $100,000 judgment previously entered against Johnson, together with interest.

Defendant maintains the appellate court misapplied the prima facie evidence rule established in Thornton v. Paul (1978), 74 Ill. 2d 132. In Thornton, this court held that evidence of a prior criminal conviction was admissible in a civil proceeding as prima facie evidence that the defendant’s conduct constituted the crime. It was said there that “[t]his approach preserves the opportunity to rebut the factual basis of the conviction insofar as those facts are applicable to the civil proceeding.” 74 Ill. 2d 132, 151.

Here, defendant argues that the appellate court relied solely on Johnson’s conviction to conclusively establish that he acted with an intent to injure. We do not read the appellate court’s opinion in this case as misconstruing Thornton. The court did not rule the conviction alone was conclusive evidence of an intent to injure, as plaintiff suggests. Rather, it found the factual circumstances of the civil case, in combination with the conviction in the criminal case, compelled its conclusion.

Defendant next contends the court ignored the stipulation of the parties which, he claims, sufficiently rebutted any intent to injure. He maintains Johnson acted in self-defense and thus the injuries defendant sustained were an unintended result of the shooting.

We disagree. The instant case does not present a situation where coverage may be extended because the injury is the unintended result of an intentional act. (See, i.e., Grinnell Mutual Reinsurance Co. v. Frierdich (1979), 79 Ill. App. 3d 1146; Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883; Smith v. Moran (1965), 61 Ill. App. 2d 157.) Rather, we find this case manifests an injury which is an intended and expected result of an intentional act. See Farmers Automobile Insurance Association v. Medina (1975), 29 Ill. App. 3d 224.

Both parties stipulated Johnson intentionally shot defendant with a .12-gauge shotgun at point-blank range. As a result of this incident, Johnson was indicted for attempted murder and ultimately convicted of aggravated battery. At his trial, Johnson offered no evidence in defense of the charge. Section 12—4(a) of the Criminal Code of 1961 (Code) provides: “A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery ***.” (Ill. Rev. Stat. 1971, ch. 38, par. 12—4(a).) Under Thornton, Johnson’s conviction of this crime is prima facie evidence in this case that he either intended defendant’s injuries or knowingly caused them. If the injuries were intended, clearly there is no coverage. The question then becomes whether it can be said that Johnson, in knowingly causing the injuries, intended or expected to injure defendant.

In defining the term “knowledge,” the Code provides:

“A person knows, or acts knowingly or with knowledge of:
(b) The result of his conduct *** when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1971, ch. 38, par. 4—5.)

Accordingly, Johnson was consciously aware that defendant’s injuries were practically certain to be caused when he fired the shotgun.

The appellate court has previously interpreted exclusionary clauses identical to the one in the instant case. The terms “intended” or “expected” included in such clauses have not been treated as synonymous. Otherwise, no purpose would be served by including them within the clause. A greater degree of proof is required to establish intent than to establish expectation. (Farmers Automobile Insurance Association v. Medina (1975), 29 Ill. App. 3d 224, 228-29 (Moran, J., specially concurring).) Injuries which are of such a nature that they should have been reasonably anticipated by the insured are “expected” injuries. (Aetna Casualty & Surety Co. v. Freyer (1980), 89 Ill. App. 3d 617, 620.) From the foregoing, we believe that Johnson, in being consciously aware that defendant’s injuries were practically certain to be caused by his conduct, must have reasonably anticipated or “expected” the injuries which resulted.

We agree with the conclusion of the appellate court in this case. The nature and elements of Johnson’s criminal conviction wherein self-defense was not raised, together with the factual circumstances in the civil case, compel the determination, as a matter of law, that Johnson either intended or expected to injure plaintiff.

In either event, the exclusionary clause is applicable. Thus, plaintiff’s insurance policy affords no coverage for the shooting incident.

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

Judgment affirmed.


author: JUSTICE CLARK

text:
    (No. 56984.
    THE CITY OF CARBONDALE, Appellant, v. VIOLET MAE YEHLING et al., Appellees.

      Opinion filed June 9, 1983.

    James R. Zimmer, of Carbondale, for appellant.

      Don E. Prosser, of Kimmel, Huffman, Prosser & Kimmel, Ltd., of Carbondale, for appellees Jack C. Atwood et al.

    John Speroni, of Garrison & Garrison, of Marion, for appellees W. E. Kimmel and Euline Kimmel.
   JUSTICE CLARK

delivered the opinion of the court:

On March 18, 1982, the city of Carbondale filed several petitions for condemnation in the circuit court of Jackson County. Defendants Mary Lou Atwood and Atwood Drugs, Inc., filed a motion to dismiss and traverse asserting that the city of Carbondale lacked legislative authority to acquire the premises sought to be taken under sections 11—74.3—4 and 11—74.4—3 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, pars. 11—74.3—4, 11—74.4—3). Defendant Yehling and other defendants alleged that ordinances 81—105 and 82—06 were void since they constituted an improper use of home rule authority, were not authorized by State law, and were unconstitutional under both the United States and Hlinois constitutions.

On May 18, the city of Carbondale moved to amend its petitions to delete reference to and reliance upon sections 11—74.3—4 and 11—74.4—3 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, pars. 11—74.3—4, 11—74.4—3). The motion was allowed.

The ordinances passed by the city of Carbondale are similar to the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.) and division 74.4 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11—74.4—1 et seq.).

Motions to dismiss were filed in all cases. On June 15, 1982, the trial court granted the motions to dismiss the petitions in the eight cases before it. On June 25, 1982, the circuit court issued an amended order reaffirming the dismissals, executed a certificate of importance, and certified the following question:

“Does a Home Rule Municipality have the authority under article VII, section 6 of the 1970 Illinois Constitution to enact and enforce an ordinance giving said municipality the right to acquire real property by eminent domain?”

On August 9, 1982, this court granted the city’s motion for a direct appeal under Rule 302(b) (73 Ill. 2d R. 302(b)).

The city of Carbondale, in enacting its eminent domain ordinances, sets forth procedures to exercise eminent domain powers within the city limits of Carbondale for the purpose of redevelopment of the business district.

We first look to the constitutional grant of home rule authority in article VII, section 6(a), of the 1970 Constitution, which provides:

“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debts.” Ill. Const. 1970, art. VII, sec. 6(a).

Home rule units were granted broad powers of self-government, and the constitution mandates that such home rule powers be construed liberally. Ill. Const. 1970, art. VII, sec. 6(m).

This court has recognized that the Constitution’s home rule provisions represent a significant change from our prior law, substantially and drastically altering the relationship between State and local government. (Kanellos v. County of Cook (1972), 53 Ill. 2d 161.) At the heart of the change is the Constitution’s rejection of Dillon’s Rule, which had held that units of local government could exercise only those powers expressly granted by State statute or necessarily and fairly implied from the legislature’s expressed grants. (1 J. Dillon, Municipal Corporations 448-49 (5th ed. 1911).) In Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166, the court said that “the power of the General Assembly to limit the actions of home-rule units has been circumscribed and home-rule units have been constitutionally delegated greater autonomy in the determination of their government and affairs. To accomplish this independence, the constitution conferred substantial powers upon home-rule units subject only to those restrictions imposed or authorized therein.”

The question we are faced with then is twofold: (1) Does the subject matter pertain to the city’s government and affairs? and if so, (2) Is the ordinance preempted by State regulation of the subject matter?

Does the exercise of the home rule unit’s eminent domain power to condemn private property within the city of Carbondale for public use pertain to the city’s government and affairs?

The city of Carbondale passed the ordinances in question for the express purpose of urban redevelopment of Carbondale’s business district and sought to accomplish redevelopment and eradication of blight by exercising the power of eminent domain. The defendants assert that the language of the Committee on Local Government of the constitutional convention supports their position that any exercise of eminent domain powers, whether within the boundaries of Carbondale’s city limits or not, does not pertain to Carbondale’s government and affairs. The Committee on Local Government of the constitutional convention said:

“[T]he powers of home-rule units relate to their own problems, not to those of the state or the nation. Their powers should not extend to such matters as divorce, real property law, trusts, contracts, etc. which are generally recognized as falling within the competence of state rather than local authorities. *** The intent of this draft as in the Committee’s proposal is to give broad powers to deal with local problems to local authorities.” 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1621-22 (hereinafter cited as Proceedings).

Certain powers are of a State or regional nature and do not therefore pertain to a home rule unit’s affairs. We do not believe that the inclusion of real property law in the comments as to the matters to which home rule powers should not extend proscribe a home rule eminent domain ordinance. It is apparent that the language quoted in the context of the comments was a further clarification in leaving to the State those traditional areas of the law that are of statewide concern. Those comments reflect an intention that a divorce decree entered in Chicago will be honored in Waukegan, a contract signed in Evanston will not require additional consideration to constitute a valid contract in Peoria, and what is essential for a valid conveyance of a parcel of land in Joliet is also essential if the land is to be conveyed in Kankakee.

The city of Carbondale seeks to utilize eminent domain powers to stimulate its economic development in constructing a hotel, convention center and parking garage in Carbondale’s business district. The land to be taken is all within the limits of Carbondale.

In our prior case law since the adoption of the 1970 Constitution the “pertaining to government and affairs question” has been raised on a number of occasions and most often answered in the negative when the interests affected extended well beyond those confined to home rule units of government. For instance, this court rejected the validity of a home rule environmental ordinance which would have affected a regional sanitary district and its member units of government in Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill. 2d 256, 261. The court found that because of its effect the ordinance was beyond the enacting unit’s home rule powers and functions and not pertaining to the unit’s government and affairs. 63 Ill. 2d 256, 260.

Another case where a home rule ordinance was struck down as not pertaining to local government and affairs was McLorn v. City of East St. Louis (1982), 105 Ill. App. 3d 148. The city ordinance in that case prohibited non-wage garnishment of city funds deposited in financial institutions in East St. Louis. The appellate court held that the institution of banking is statewide and of such a nature that the ordinance could not qualify as one that addressed local government and affairs.

In County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, this court gave its most comprehensive analysis of the “pertaining to local government and affairs” clause. The court said that a matter may be of both statewide and local concern but only if it is sufficiently local in character is it subject to home rule powers. (75 Ill. 2d 494, 509.) In Sexton the court balanced the potential impact on persons and property not within Cook County against the home rule unit’s interest in local regulation and concluded that while the county must comply with the environmental regulations of the State Environmental Protection Agency in zoning land for sanitary landfill sites, the State agency must also comply with the home rule unit’s valid zoning ordinances when issuing permits for landfill sites. 75 Ill. 2d 494, 516.

While we view the concerns of Carbondale in the instant case to be sufficiently local in character that the city’s purpose “pertain[s] to the local government and affairs,” we next have to determine whether enforcement of the city’s eminent domain power as outlined in the city ordinance impermissibly interferes with the State judiciary system. We find that in imposing duties upon county and judicial officials and prescribing the order of certain court proceedings, the ordinance is no longer local in character. Although Carbondale’s purpose in enacting the ordinances in question pertains to its local government and affairs, the method of enforcement prescribed to carry out the eminent domain proceedings is impermissible, and therefore the ordinances cannot be considered as pertaining to the local affairs of Carbondale.

The plaintiff asserts that the courts of this State are often called upon to enforce or interpret municipal ordinances. That assertion is certainly true, and the city of Carbondale is correct in its citation to City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, for such a proposition. In Create the court found that Evanston’s landlord and tenant ordinance could define notice procedures, duties of the parties and remedies available, since there were no conditions placed upon access to the State’s court system. City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 116.

In the instant case, the ordinance purports to define the notice procedures of the courts, duties of parties in court, and specific remedies available in court proceedings. In doing so the city is attempting to set forth rules for the State judiciary to follow. This exercise of power is clearly a matter of State concern, and not a local function pertaining to a home rule unit’s government and affairs.

In Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, the court struck down a home rule county’s attempt to require the collection of filing fees in civil suits to be used to finance the county’s law library. In Ampersand, the attempted collection was limited to the enacting county and the intended use was of local concern. Yet the court held the county’s ordinance did not pertain to the county’s government or affairs because of its impact on the administration of justice. The court was unable to “accept defendants’ argument that since the operation of the library is a local function so also is the imposition of the fee to support it. The payment of a fee under the ordinance is the price of admission to the courts of the State of Illinois and not to the Cook County Law Library.” Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 543. The court said that “[article VI of the 1970 Constitution does not contemplate nor does it authorize the exercise of any control over or permit the imposition of a burden on the judicial system by any local entity.” Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 542.

The reasoning articulated in Ampersand applies here. The enforcement provisions of ordinance 81—105 exceed the plaintiff’s authorized home rule authority.

In Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, the defendants argue that under certain provisions of the ordinance in question there, the Administrative Review Act could be made to apply to administrative decisions rendered under the ordinance. The court disagreed in finding that “[t]he method of judicial review of the decisions of the defendant city’s administrative agencies is not a ‘function pertaining to its government and affairs’ within the contemplation of section 6 of article VII of the Constitution of 1970, and the determination of the manner or method of such review is not within the powers conferred upon the City.” (57 Ill. 2d 553, 580.) While finding that part of the ordinance in Paper Supply invalid, the court did determine that the -unconstitutional section was sever-able.

In the instant case, the enforcement provisions in question are not severable. We conclude that despite separability clauses within both ordinances 81—105 and 82—06 the enforcement provisions that invalidate Carbondale’s ordinances are inextricably interwoven within the ordinances.

The following excerpts provide a sampling of the method of judicial review that ordinance 81—105 attempts to set forth.

Section 22—1—2 of ordinance 81—105 provides:

“Private property shall not be taken or damaged for public use without just compensation; and that in all cases in which compensation is not made by the City in its corporate capacity, such compensation shall be ascertained by a jury, as hereinafter prescribed. Where compensation is so made by the City, any party upon application may have a trial by jury to ascertain the just compensation to be paid. Such demand on the part of the City shall be filed with the petition for condemnation of the City. Where the City is the petitioner, a defendant desirous of a trial by jury must file a demand therefor on or before the return date of the summons served on him or fixed in the publication in case of defendants served by publication. In the event no party in the condemnation suit demands a trial by jury as provided for by this section, then the trial shall be before the court sitting without a jury.” City of Carbondale Ordinance 81 — 105, sec. 22-1-2 (1981).

Section 22—1—3.2(A) of ordinance 81—105 provides:

“(A) The court shall fix a date, not less than 5 days after the filing of such motion [a motion for taking], for the hearing thereon, and shall require due notice to be given to each party to the proceeding whose interests would be affected by the taking requested, except that any party who has been or is being served by publication and who has not entered his appearance in the proceeding need not be given notice unless the court so requires, in its discretion and in the interests of justice.” City of Carbondale Ordinance 81—105, sec. 22— 1—3.2(A) (1981).

Section 22—1—3.3 of ordinance 81—105 provides:

“(A) If the petitioner deposits with the county treasurer money in the amount preliminarily found by the court to be just compensation, the court shall enter an order of taking, vesting in the petitioner the fee simple title (or such lesser estate, interest or easement, as may be required) to the property, if such vesting has been requested, and has been found necessary by the court, at such date as the court considers proper, and fixing a date on which the petitioner is authorized to take possession of and to use the property.” City of Carbondale Ordinance 81-105, sec. 22-1-3.3 (1981).

The city of Carbondale cannot dictate procedures that the courts of this State are to follow. Section 5 of ordinance 82—06 provides for the city manager to acquire property through condemnation proceedings as authorized by the laws of the city of Carbondale. (See City of Carbon-dale Ordinance 82—06, sec. 5 (1982).) Because we find that ordinance 81—105 improperly infringes upon the State judicial system, we also have determined that ordinance 82—06, in calling for the city manager to take action pursuant to ordinance 81—105 in condemning private property, is invalid.

While much of the language of ordinance 81—105 is taken verbatim from the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.), such drafting on the part of Carbondale does not cure the constitutional infirmity that exists here.

In conclusion, we hold that the ordinances in question do not “pertain to the government and affairs” of the city of Carbondale and therefore cannot stand. It is unnecessary for us to discuss the question of the State’s preemption since we have found that the method of enforcement to take property by eminent domain goes beyond Carbon-dale’s home rule authority.

The judgment of the circuit court of Jackson County granting the defendants’ motion to dismiss is affirmed.

Judgment affirmed.

       See Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 425 (Underwood, J., dissenting). The majority holding in Carlson addressed a non-home-rule unit’s authority to superimpose requirements of its own upon the holder of a permit for the operation of a sanitary landfill issued by the State Environmental Protection Agency; in disagreeing with the court’s holding Justice Underwood articulated analogous questions to those posed here as the proper mode of analysis when the court is faced with a question of whether a home rule unit has the authority to enact a particular ordinance. The questions were not raised in the majority’s opinion in Carlson because the case dealt with a non-home-rule municipality.


author: CHIEF JUSTICE RYAN JUSTICE GOLDENHERSH,

text:
    (No. 56829.
    BILL ARRINGTON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charles M. Pulley, Jr., Appellee).

      Opinion filed June 17, 1983.

      Alfred R. Bonaldi, of Keefe & De Pauli P.C., of Fair-view Heights, for appellant.
    Robert P. Schulhof, of Robert P. Schulhof & Associates, of Carbondale, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Charles M. Pulley, Jr., filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries arising out of and in the course of his employment with Bill Arrington in Carbondale. Following a hearing, the arbitrator awarded him eight weeks of compensation at the rate of $105 for temporary total disability, 25 weeks of compensation at the rate of $90 for permanent partial disability, and $1,020.43 for necessary medical and hospital expenses. The Industrial Commission, on November 19, 1981, modified the decision of the arbitrator by finding that Pulley failed to prove he suffered injuries caused by his employment and did not establish he was entitled to an award as a result of work-related injuries. The circuit court of Williamson County reversed the decision of the Industrial Commission and reinstated the award of the arbitrator. Arrington appealed directly to this court pursuant to Rule 302(a)(2) (87 Ill. 2d R. 302(a)(2)).

Arrington contends that the circuit court did not have jurisdiction to review the decision of the Industrial Commission because of Pulley’s failure to comply with the requirements of section 19(f)(l) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)(1)), which provides that the circuit court shall, by writ of certiorari to the Industrial Commission, have the authority to review all issues of law and fact presented by the record. A suit shall be initiated within 20 days of the receipt of notice of the Commission’s decision. Section 19(fXl) also provides:

“[N]o praecipe for a writ of certiorari may be filed and no writ of certiorari shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court a receipt showing payment of the sums so determined to the Secretary or Assistant Secretary of the Commission ***.” Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)(1).

We noted above that the decision of the Industrial Commission was rendered November 19, 1981. It was received by Pulley on November 25, 1981. On December 3, 1981, Pulley’s attorney mailed a check for $125 to the Industrial Commission. This check was payment for the probable cost of the record to be filed as a return to the writ of certiorari. On December 7, 1981, the Industrial Commission issued a receipt for this check. On December 9, 1981, Pulley’s attorney filed an affidavit with the clerk of the circuit court of Williamson County which stated that he sent a check to the Industrial Commission on December 3, 1981, to pay the probable cost of the record but had not yet received a receipt. The attorney for Pulley also filed a praecipe for a writ of certiorari on December 9, 1981. On the basis of the affidavit, the clerk issued a writ of certiorari on that day. There is nothing in the record to show that the clerk was made aware by any means other than the affidavit that the cost of the record had actually been paid to the Industrial Commission.

On December 14, 1981, the attorney for the claimant received the Industrial Commission receipt and mailed it to the clerk of the circuit court. The clerk received and filed the receipt on December 16, 1981. The 20th day following the receipt of the decision of the Commission was December 15,1981.

This court has consistently held that when the circuit court hears cases on certiorari to the Industrial Commission, it exercises a special statutory jurisdiction. (Perusky v. Industrial Com. (1978), 72 Ill. 2d 299, 301; International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 185; Boalbey v. Industrial Com. (1977), 66 Ill. 2d 217, 218; Berry v. Industrial Com. (1973), 55 Ill. 2d 274, 277; Peter H. Clark Lodge No. 483, I.B.P.O.E. v. Industrial Com. (1971), 48 Ill. 2d 64, 68.) While circuit courts are courts of general jurisdiction and enjoy a presumption of subject matter jurisdiction, this presumption is not available in compensation cases, where the court is exercising special statutory jurisdiction. Strict compliance with statutory requirements for the issuance of the writ must affirmatively appear in the record. (Wabash Area Development, Inc. v. Industrial Com. (1981), 88 Ill. 2d 392; Village of Glencoe v. Industrial Com. (1933), 354 Ill. 190, 195; Keal v. Rhydderck (1925), 317 Ill. 231, 236.) The Act requires that a litigant who seeks to review a decision of the Industrial Commission exhibit to the clerk of the circuit court a receipt showing payment of the amount of the probable cost of the record. If this condition precedent for the issuance of the writ is not met, the circuit court does not have subject matter jurisdiction. Pulley contends that Arrington has waived this issue by failing to raise the question in the circuit court. This question involves subject matter jurisdiction, which a party does not waive by failing to raise it in the lower court. It can be raised at any time. See City of Chicago v. Shayne (1963), 27 Ill. 2d 414; Perlman v. Thomas Paper Stock Co. (1941), 378 Ill. 238; Michelson v. Industrial Com. (1941), 375 Ill. 462.

As noted, strict compliance with statutory provisions is required. However, in Berry v. Industrial Com. (1973), 55 Ill. 2d 274, this court held that a receipt which showed payment of the amount of the probable cost of the record to the secretary of the Industrial Commission did not have to be exhibited physically to the clerk of the circuit court. Instead, the clerk need only be satisfied that the cost has been paid before he permits the praecipe to be filed and issues a writ of certiorari. The court in Berry reasoned that the claimant met the statutory requirement when the court clerk received a letter or telegram from the Commission stating the probable cost had been paid, or a copy of an attorney’s cover letter to the Commission transmitting such costs, which was followed by the clerk telephoning the Commission to verify that the check had actually been received. The court determined these relaxed requirements fulfilled the statutory purpose to coerce payment of an amount sufficient to cover the cost of preparing the record and also simplified procedure, honored substance over form, and prevented technicalities from depriving a party of the right to be heard.

In Wabash Area Development, Inc. v. Industrial Com. (1981), 88 Ill. 2d 392, this court interpreted the holding of Berry and other cases which are consistent with Berry (Republic Steel Corp. v. Industrial Com. (1964), 30 Ill. 2d 311, 313; Lee v. Industrial Com. (1980), 82 Ill. 2d 496) to be based on the fact that the record in each of them established that the party seeking review had fulfilled the substance of section 19(f). Unlike Berry, the court in Wabash found, however, that no proof in the record showed that a receipt was exhibited to the clerk of the court, or that he was otherwise satisfied that the probable cost of the record had been paid. Therefore, the court held that the writ of certiorari was improperly issued. We find the writ of certiorari was also improperly issued in our case.

The claimant admits on review that no proof in the record establishes that a receipt was physically exhibited to the clerk before the issuance of the writ of certiorari. Further, we conclude that the affidavit filed by the claimant’s attorney which purports to show payment of the probable cost of the record to the secretary of the Commission is unsatisfactory to show substantial compliance with the statute. The affidavit merely indicates that a check for such payment was mailed to the secretary of the Commission on December 3, 1981. Since the check might have been lost or misplaced in transit by the postal service, this affidavit is inadequate to demonstrate that the Commission had actually received payment of the probable cost of the record before the writ of the circuit court issued.

In holding that the claimant’s affidavit failed to provide sufficient evidence that the probable cost of the record had actually been paid, we decline to extend the rationale of Berry to cover this case. Although we recognize Berry sought to further substance over form and prevent technicalities from depriving a party of the right to be heard, these objectives must be balanced against the statutory goal of ensuring that payment has actually been received prior to the issuance of the writ. In seeking to relax further the standards articulated in Berry to cover a new situation where no proof exists in the record to show the clerk was actually made aware that the payment had been received, the claimant asks us to create an unacceptable risk that the writ of certiorari will be improvidently issued.

It is true that in our case the evidence now shows that the payment had actually been made and the receipt of the Commission had been issued before the writ of certiorari was issued by the circuit court. However, under the procedure followed in this case, it would have been possible for payment not to have been received before the writ issued, or possible that it would never be received. The strictness of the statutory requirement was designed to ensure that this would not happen. It was designed to relieve the Commission of the uncertainty of whether or not payment would be received. We relaxed the strict statutory requirement in Berry so that it was not necessary that the receipt be physically exhibited to the clerk before the writ issued. We cannot, however, relax the requirement further to the extent of injecting into the proceedings the very uncertainty of payment which the statutory requirement was designed to eliminate. Any substitute for physically exhibiting the receipt to the clerk must carry with it the same certainty that payment has been received by the Commission as is demonstrated by physically exhibiting the receipt itself. Furthermore, the record of the circuit court should reflect the nature by which this certainty has been accomplished.

We recognize the hardship that strict compliance with section 19(f)(1) imposes upon attorneys whose offices are located at a distance from the office of the Industrial Commission. Quite often delays in mail service make it difficult for an attorney to mail his check to the Industrial Commission and receive a receipt back in time to file the praecipe for certiorari with the circuit clerk within 20 days of the receipt of notice of the decision of the Commission. The clear language of the statute does not permit this court to ignore its mandate. We are therefore compelled to reach the decision which we do. We strongly suggest, however, that the General Assembly seriously consider amending section 19(f)(1) to permit proof of payment to the Commission to be made by affidavit of the attorney or in some other suitable manner.

Since the requirements of section 19(f)(1) of the Act were not complied with, the writ of certiorari was wrongfully issued by the circuit clerk of Williamson County and the circuit court had no jurisdiction to review the findings of the Industrial Commission. The judgment of the circuit court of Williamson County is therefore vacated.

Judgment vacated.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would decide the appeal on the merits. In Berry v. Industrial Com. (1973), 55 Ill. 2d 274, the court stated that the statute required that the receipt for the probable cost of the record be exhibited to the clerk of the circuit court before the writ of certiorari is issued in order to coerce payment of the cost of preparing the Industrial Commission’s record. In Berry the court held that a confirmation by telephone to the circuit clerk was sufficient compliance with the statute.

An attorney is an officer of the court and under our rules the certification of an attorney is accepted without question that he has given notice to opposing parties and performed other acts required either by statutes or rules.

Here, counsel on December 9, 1981, filed an affidavit with the clerk stating that on December 3, 1981, he had sent a check to the Industrial Commission. That this was true is confirmed by the fact that the Industrial Commission issued its receipt dated December 7, 1981. If instead of filing an affidavit counsel had suggested that a deputy clerk call the Industrial Commission’s office in Chicago he would have been in compliance with Berry. Under these circumstances shown, his affidavit of compliance should be adequate to accomplish the same result.

JUSTICE SIMON joins in this dissent.