author: MR. CHIEF JUSTICE WARD

text:
    (No. 50584.
    (No. 50769.
    THE PEOPLE ex rel. COMPAGNIE NATIONALE AIR FRANCE, Petitioner, v. LOUIS J. GILIBERTO, Judge, et al., Respondents.—EITAN ARONOWITCH et al., Appellees, v. COMPAGNIE NATIONALE AIR FRANCE et al., Appellants.

      Opinion filed December 4, 1978.

      Donald M. Haskell and Michael J. Sehr, of Haskell & Perrin, of Chicago (William J. Junkerman, William F. Martin, Jr., and Haight, Gardner, Poor & Havens, of New York, New York, of counsel), for appellant Compagnie Nationale Air France.
    Stuart M. Speiser, John J. Kennelly, and Kevin M. Forde, of Chicago (Stuart M. Speiser, Charles F. Krause, Lawrence Goldhirsch, Howard S. Chapman, Kevin M. Forde, Mary C. Morrissy, and John J. Kennelly, of Speiser and Krause, of New York, New York, and Paul H. Baris, Esq., of Tel Aviv, Israel, Theodore Klein, of Paris, France, and David M. Lack, Q.C., of Montreal, Canada, of counsel), for appellees.
    Donald M. Haskell and Michael J. Sehr, of Haskell & Perrin, of Chicago (William J. Junkerman, William F. Martin, Jr., and Haight, Gardner, Poor & Havens, of New York, New York, of counsel), for appellant Compagnie Nationale Air France.
    Heineke & Schrader, of Chicago (Mendes & Mount, of New York, New York, of counsel), for appellant Singapore Airlines, Ltd.
    Stuart M. Speiser, John J. Kennelly, and Kevin M. Forde, of Chicago (Stuart M. Speiser, Charles F. Krause, Lawrence Goldhirsch, Howard S. Chapman, Kevin M. Forde, Mary C. Morrissy, and John J. Kennedy, of Speiser and Krause, of New York, New York, and Paul H. Baris, Esq., of Tel Aviv, Israel, Theordore Klein, of Paris, France, and David M. Lack, Q.C., of Montreal, Canada, of counsel), for appellees.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

Plaintiff Eitan Aronowitch and some 80 other named plaintiffs brought an action in the circuit court of Cook County against the defendants, Compagnie Nationale Air France (Air France), Singapore Airlines, Ltd. (Singapore), and Gulf Air Lines (Gulf), to recover damages for injuries suffered by the plaintiffs or for the deaths of the decedents of some of the plaintiffs at the hands of four terrorists who hijacked an Air France plane in which the plaintiffs or their decedents were traveling as passengers. For brevity we will use the term “plaintiffs” hereafter to include those plaintiffs’ decedents.

Air France moved to dismiss the action on the ground that the court lacked jurisdiction of the action by virtue of article 28 of the Convention for Unification of Certain Rules Relating to International Transportation by Air, commonly known as the Warsaw Convention (49 Stat. 3000 et seq.; 49 U.S.C.A. note following section 1502; 3 Av. L. Rep. par. 27,012 et seq.) and on the further ground that the suit should be dismissed under the doctrine of forum non conveniens. Singapore moved to dismiss the action on the latter ground only.

The circuit court denied the motions to dismiss, and Air France and Singapore prosecuted an interlocutory appeal to the appellate court under Rule 308 (58 Ill. 2d R. 308). Air France was granted leave by this court to file a petition for a writ of mandamus directing the trial judge to dismiss Air France from the case. Thereafter we also allowed motions by each defendant to transfer the appeals to the appellate court to this court under Rule 302(b) and to consolidate them with the action for mandamus.

The circumstances out of which the present action arose, as alleged in the complaint and in affidavits filed by the parties, are as follows: On the morning of June 27, 1976, the plaintiffs, along with other passengers, boarded an Air France plane at Tel Aviv, Israel. The plane was on a regularly scheduled flight to Paris, France, with an intermediate stop at Athens, Greece. The four persons who later hijacked the plane boarded it when it landed at Athens. A few minutes after the plane took off, thp hijackers, who were heavily armed, entered the cockpit, commandeered the plane, and forced it to fly to Benghazi, Libya, where it remained about six hours for refueling. During this time the passengers, including the plaintiffs, were compelled to remain aboard. The plane was then forced to fly to Entebbe Airport in Uganda, where it landed at about 3:15 a.m. on June 28. After being kept on the plane for some six hours, the plaintiffs were placed in a vacant terminal building where they remained confined until July 4, when they were rescued by a force of Israeli commandos. The purpose of the hijackers was to hold the plaintiffs and other Jewish passengers as hostages against the release of terrorists being held prisoner in Israel.

None of the plaintiffs are citizens of the United States and none of them reside in the United States.

The complaint alleges that both during the time when they were airborne and also while they were held captive by the hijackers in Entebbe the plaintiffs suffered physical injuries and were threatened with death by the hijackers, and thus experienced nervous shock and mental distress.

The complaint charged Air France with negligence in failing to inspect passengers who boarded the plane at Athens and their luggage. It alleged that, if such an inspection had been made, the arms being carried by the hijackers would have been discovered, the hijacking would have been thwarted, and the injuries inflicted on the plaintiffs would not have occurred. The complaint alleged that the four hijackers had reached Athens airport on a Singapore plane from Bahrain, to which they had been flown on a plane from Abu Dhabi operated by Gulf. Similar allegations of negligence in failing to conduct an inspection of passengers when they boarded were made against Singapore and Gulf. Gulf moved to dismiss the suit as to it on the ground that it had not been properly served with process. That motion is still pending in the circuit court, and Gulf is not a party to the present proceeding.

We consider first the contention made by Air France that suit against it was barred by the Warsaw Convention. Since the present proceeding appears to be the first in which a case of this character has been before this court, some background explanation is appropriate.

The Warsaw Convention became effective February 13, 1933, and was recognized and adhered to by the United States in 1934. In essence the Convention relates to the liability of air carriers for death and damages suffered by passengers in the course of “international transportation,” a term which is defined by article 1(2) of the Convention as follows:

“For the purposes of this convention the expression ‘international transportation’ shall mean any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention. ”

Article 17 of the Convention imposes liability without proof by a plaintiff of negligence or other fault on the part of the defendant:

“The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodEy injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

Article 20(1) provides a complete defense to the carrier, however, upon proof that it and its “agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.” Unless the death or damage was caused by what is termed the defendant’s “wilful misconduct” (art. 25), the defendant’s liability cannot exceed a monetary ceiling which is set by article 22. The original dollar equivalent of the ceiling was approximately $8,300. That ceiling was subsequently increased to about $16,000 by the so-called Hague Protocol of 1955 (3 Av. L. Rep. par. 27, 101). The Protocol was signed by the executive branch of the United States government, but was never ratified by the Senate.

With respect to international transportation in which the United States is either the point of origin or of destination or is an agreed stopping place, the Convention and the Protocol were superseded in 1966 by an agreement between the United States and numerous carriers called the “Montreal Agreement” (3 Av. L. Rep. par. 27, 130). Under that agreement the maximum damages recoverable were increased to $75,000 (inclusive of legal fees), and the carriers also agreed not to avail themselves of the due care defense contained in article 20(1) of the Convention. The Montreal Agreement was approved by the Civil Aeronautics Board in Order No. 18900 (31 Fed. Reg. 7302 (1966)).

For purposes of the present case neither the Hague Protocol nor the Montreal Agreement need be considered further. For accounts of the developments summarized above see 49 U.S.C.A., note following sec. 1502; Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497 (1967); Husserl v. Swiss Air Transport Co. (S.D.N.Y. 1972), 351 F. Supp. 702, 703 n.1; Husserl v. Swiss Air Transport Co. (S.D.N.Y. 1975), 388 F. Supp. 1238, 1241 nn. 1 & 2, 1244.

The concerned provision in this case is article 28(1), which provides as follows:

“An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.”

It is Air France’s position that its domicile is not the United States but France, since the latter is the nation in which the defendant is incorporated, and that Paris, France, is its principal place of business. While Air France does business in Cook County, the plaintiffs ’ contracts for passage were not made in this country; that is to say, their tickets were not purchased here. The place of destination of the Air France flight as specified on the plaintiffs’ tickets was not the United States. Air France thus contends that the circuit court of Cook County does not fall within any of the alternative forums specified by article 28(1).

The plaintiffs, on the other hand, contend that Air France is domiciled in the United States because it conducts a “substantial” amount of “business” here, that article 28(1) of the Convention is inapplicable because the tickets purchased by the plaintiffs did not contain a notice of the limitation contained in that article of the places where suit might be brought; and that Air France waived any right to challenge the jurisdiction of the circuit court by having entered a general rather than a special appearance. To the extent that the Convention might be applicable, the plaintiffs also contend that it is unconstitutional.

Before discussing the issues made between the parties we note preliminarily that it is now established that the hijacking of an airplane, and other acts of terrorism committed in the course of international flights, are “accidents” within the meaning of article 17. Husserl v. Swiss Air Transport Co. (S.D.N.Y. 1972), 351 F. Supp. 702, aff’d mem. (2d Cir. 1973), 485 F.2d 1240; Day v. Trans World Airlines, Inc. (2d Cir. 1975), 528 F.2d 31, 33, 37-38, cert. denied (1976), 429 U.S. 890, 50 L. Ed. 2d 172, 97 S. Ct. 246; Karfunkel v. Compagnie Nationale Air France (S.D.N.Y. 1977), 427 F. Supp. 971.

The complaint alleges:

“During the said seizure and diversion of said flight to Uganda and during detention from June 27, 1976 until their release, at the Entebbe Airport, said plaintiffs were severely injured, threatened, hurt, denied adequate shelter, clothing, food and drink, proper sanitary facilities and medical attention and put in fear for their health and their lives, resulting in injuries to them and each of them.”

From more specific allegations made later in the complaint it appears that some, at least, of the threats and physical injuries to which the plaintiffs were allegedly subjected may not have taken place while they were aboard the plane but rather while they were kept in detention at Entebbe. Assuming that to be the case the Warsaw Convention would not thereby be rendered inapplicable to this suit. Its applicability, under article 17, depends upon the place where the “accident,” rather than the resulting injuries, occurred, and the “accident,” as already noted, consisted of the hijacking itself. (Cf. Husserl v. Swiss Air Transport Co. (S.D.N.Y. 1975), 388 F. Supp. 1238, 1245-46.) Moreover, the removal of the plaintiffs by the hijackers at a point which was neither their intended destination nor an intended intermediate stop cannot realistically be looked upon as a “disembarkation” which would terminate Air France’s liability under article 17. Cf MacDonald v. Air Canada (1st Cir. 1971), 439 F.2d 1402; Hernandez v. Air France (1st Cir. 1976), 545 F.2d 279, cert. denied (1977), 430 U.S. 950, 51 L. Ed. 2d 800, 97 S. Ct. 1592; Maugnie v. Compagnie Nationale Air France (9th Cir. 1977), 549 F.2d 1256, cert. denied (1977), 431 U.S. 974, 53 L. Ed. 2d 1072, 97 S. Ct. 2939.

The plaintiffs’ first contention is that Air France is domiciled in the United States. They say that the domicile of a corporation as that term is used in article 28(1) includes any country where the airline carries on its business on “a regular and substantial basis,” and that the United States qualifies under such a definition. The meaning of domicile cannot, however, be so extended. The domicle of a corporation is customarily regarded as the place where it was incorporated, and the courts have given that meaning to the term as it is used in article 28(1) of the Convention. (See Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F.2d 798, 802; Nudo v. Societe Anonyme Belge d’Exploitation de la Navigation Aerienne Sabena Belgian World Airlines (E.D. Pa. 1962), 207 F. Supp. 191; Karfunkel v. Compagnie Nationale Air France (S.D.N.Y. 1977), 427 F. Supp. 971, 974.) Moreover, the structure of article 28(1), viewed as a whole, is also incompatible with the plaintiffs’ claim. The article, in stating that places of business are among the bases of jurisdiction, sets out two places where an action for damages may be brought: the country where the carrier’s principal place of business is located, and the country in which it has a place of business through which the particular contract in question was made, that is, where the ticket was bought. Adopting the plaintiffs’ theory would at a minimum blur these carefully drawn distinctions by creating a third intermediate category. It would obviously introduce uncertainty into litigation under the article because of the necessity of having to determine, and without standards or criteria, whether the amount of business done by a carrier in a particular country was “regular” and “substantial.” The plaintiffs’ request to adopt this basis of jurisdiction is in effect a request to create a new jurisdictional standard for the Convention.

The plaintiffs next contend that the tickets issued to them did not inform them of the limitations under article 28(1). The plaintiffs claim this was equivalent to a failure to advise them of the monetary limitation on liability contained in article 22, an omission which precludes a carrier from reliance on that limitation. Lisi v. Alitalia-Linee Aeree Italiane (2d Cir. 1966), 370 F.2d 508, aff’d by an equally divided court (1968), 390 U.S. 455, 20 L. Ed. 2d 27, 88 S. Ct. 1193.

Article 3(l)(e) requires a ticket to carry “a statement that the transportation is subject to the rules relating to liability established by this convention,” and article 3(2) provides:

“The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability.”

The provision of article 28(1) limiting the places where a carrier may be sued are not provisions “which exclude or limit his liability,” and the latter phrase refers only to the monetary ceiling on damages found in article 22. The Hague Protocol of 1955 confirmed such a reading of article 3(2) by amending that provision (which was then renumbered as paragraph (2)) so as to read:

“The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this Convention. Nevertheless, if, with the consent of the carrier, the passenger embarks without a passenger ticket having been delivered, or if the ticket does not include the notice required by paragraph 1(c) of this Article, the carrier shall not be entitled to avail himself of the provisions of Article 22.”

Even without this amendment by the Hague Protocol, however, courts have declined to extend article 3(2) of the Warsaw Convention to situations in which the information omitted from a ticket related to matters beyond the monetary liability ceilings of article 22. Thus, in Molitch v. Irish International Airlines (2d Cir. 1970), 436 F.2d 42, it was unsuccessfully contended that the failure to inform a passenger of the two years’ limitations period specified in article 29(1) of the Convention barred reliance on that period. The court held that the limitations period was not “a provision which excludes or limits liability” within the meaning of section 3(2). (436 F.2d 42, 44.) Similarly in Butler’s Shoe Corp. v. Pan American World Airways, Inc. (5th Cir. 1975), 514 F.2d 1283, the court held that a tariff provision specifying the time within which a notice of loss must be filed was not void as constituting a provision “relieving a carrier of liability” and thus void under article 23. As explained in Lisi v. Alitalia-Linee Aeree Italiane (2d Cir. 1966), 370 F.2d 508, 512-13, the purpose of requiring disclosure to a passenger that the amount of recovery may be limited if he should be killed or injured in an accident is to enable the prospective passenger to take protective measures such as taking out additional insurance. Having given an advantage to the carrier by reducing liability, it is understandable that the Convention should require that a passenger should be made aware of it.

We perceive no comparable reason, however, why the individual passengers here would have cared to know in which Convention country his action for damages must be brought, since the same damages limitation would apply in each. It was observed in Molitch, with respect to the statute of limitations, that “[a] prospective passenger is unlikely to care about the length of the statute of limitations and it is difficult to conceive of any protective measures that he might take prior to boarding the plane were he notified of the limitation.” (436 F.2d 42, 44.) We consider the same is true with respect to a restriction as to the countries in which suit must be brought.

The plaintiffs also argue that Air France waived the benefit of article 28 because it did not file a special appearance but appeared generally. We also reject this contention. Under section 20 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 20), a special appearance is a vehicle “for objecting to the jurisdiction of the court over the person of the defendant.” Air France was properly served with process, and no question of personal jurisdiction over it is involved. Challenges to jurisdiction over the subject matter of an action are dealt with by other sections of the Act, namely sections 43(3) and 48(l)(a).

Lack of subject matter jurisdiction cannot be waived. Thus, in People v. Sanitary District (1904), 210 Ill. 171, this court held that the State’s sovereign immunity under the 1870 Constitution could not be waived by the Attorney General’s entry of an appearance for the State as a defendant. In Werner v. Illinois Central R.R. Co. (1942), 379 Ill. 559, it was held that a statutory limitation of the jurisdiction of a city court to those cases arising within the city could not be enlarged by the consent of the parties and “was not waived by defendant’s appearance and participation in the trial.” (379 Ill. 559, 566.) In Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61, 68, we recently reaffirmed the rule invoked in the Werner case.

The plaintiffs, without citation of any supporting decision, make two responses to the principle stated above. The first is that the subject matter here is the general power of a circuit court to entertain “original jurisdiction of all justiciable matters” (Ill. Const. 1970, art. VI, sec. 9). We consider that this argument begs the question, for what the Convention does is to remove from the general jurisdiction of the circuit courts those claims arising out of “international transportation” for which the circuit courts are, because of article 28(1), not suitable forums.

The principle is analogous to the statutory exclusion from circuit court jurisdiction of suits against the State, which must be brought in the Court of Claims (see section 8 of the Court of Claims Act (Ill. Rev. Stat. 1977, ch. 37, par. 439.8)), even though in the Court of Claims the amount recoverable is limited and many procedural rights enjoyed by a plaintiff in a circuit court proceeding are inapplicable. Seifert v. Standard Paving Co. (1976), 64 Ill. 2d 109; Williams v. Medical Center Com. (1975), 60 Ill. 2d 389.

The plaintiffs’ second argument appears to accept the proposition that subject matter jurisdiction is not waivable, but seeks to avoid that result by asserting that what is involved here is not true subject matter jurisdiction but a separate category called “treaty jurisdiction.”

On occasion a Federal court has referred to article 28(1) as establishing “treaty jurisdiction.” (See Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F.2d 798, 801-02.) For purposes of the court’s discussion, the term was coined in order to draw a distinction from the “power of a particular United States court, under federal statutes and practice, to hear a Warsaw Convention case — jurisdiction in the domestic law sense.” (452 F.2d 798, 800.) The court in Smith also held that article 28(1) did not refer to venue, as opposed to jurisdiction, a point with which the plaintiffs agree in their brief, where it is stated, “There is no ‘venue’ issue herein.” Smith also pointed out the language of article 32 of the Convention prohibiting alteration of rules “as to jurisdiction.” (452 F.2d 798, 801.) There is nothing in Smith to show a disposition to dilute or attenuate the nonwaiver rule which applies to subject matter jurisdiction.

Since 1938 there has been no provision for a special appearance in the Federal Rules of Civil Procedure. (15 Wright, Miller & Cooper, Federal Practice and Procedure sec. 3829, at 196 (1976).) The narrow question of waiver of article 28(1) by entry of a general appearance which the plaintiffs raise has not thus arisen in the Federal court decisions. The Federal courts, however, have repeatedly granted motions to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for want of jurisdiction because of the provisions of article 28(1). See Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F.2d 798; Nudo v. Societe Anonyme Belge d’Exploitation de la Navigation Aerienne Sabena Belgian World Airlines (E.D. Pa. 1962), 207 F. Supp. 191; Karfunkel v. Compagnie Nationale Air France (S.D.N.Y. 1977), 427 F. Supp. 971; Butz v. British Airways (E.D. Pa. 1976), 421 F. Supp. 127, aff’d mem. (3d Cir. 1977), 566 F.2d 1168.

The final contention of the plaintiffs as to article 28(1) of the Convention is that, if applicable, the article deprives them of rights guaranteed by the Constitution of the United States. The trial court, upon the denial of the defendants’ motions to dismiss, expressed doubts as to constitutionality, but the validity of article 28(1) was not among the questions certified for review. .

The plaintiffs do not cite any decision holding the Convention invalid, either with respect to article 28(1) or otherwise, nor indeed does their brief set forth the ground on which its validity is questioned here. Their brief only states, “Plaintiffs do not desire to waive this point but it would unduly lengthen this brief to argue the alleged unconstitutionality of Article 28(1),” and they simply refer this court to a portion of a brief filed in the trial court which is addressed to this issue. It would not be unreasonable to say that the plaintiffs by proceeding in this manner have waived their point as to unconstitutionality in this court under our Rule 341(e)(7) (58 Ill. 2d R. 341(e)(7)), but we have nevertheless examined the trial court brief.

From that brief, it appears that the constitutional challenge asserted here rests only on the claim that the circuit court of Cook County, in the plaintiffs’ words, “[i] s one of the few forums, perhaps the only one on this planet, where all three defendant airlines carry on business and are subject to process.” From this, the plaintiffs assert, it follows that dismissal of this suit would deprive them of due process of law. The contention does not persuade. It is not unique to article 28(1) that a plaintiff may be unable to sue all defendants in a single action, whether because of lack of personal jurisdiction, venue problems, subject matter limitations on Federal or State court jurisdiction, or the like. The plaintiffs cite no authority for the proposition that such inability amounts to a deprivation of due process.

For the reasons given, we hold that the trial court was in error in denying the motion by Air France to dismiss it from the suit on the ground that suit was barred by the Warsaw Convention.

While the foregoing discussion disposes of the appeal by Air France, there remains to be considered the appeal by Singapore, which, since the complaint did not allege any injury to its own passengers, so as to make the Warsaw Convention applicable, based its motion solely on the ground that the doctrine of forum non conveniens required dismissal of the case.

Our holding that the plaintiffs’ suit against Air France could not be brought in Cook County because of the Warsaw Convention would seem to diminish, if not eliminate, the suitability of Cook County as a forum for the plaintiffs. The dismissal of Air France from the suit removes the base of the plaintiffs’ desire to retain Singapore in the circuit court of Cook County.

The single question presented as to Singapore in the trial court was described by that court as “whether the circuit court of Cook County is an improper forum to litigate this action.” For us, on Singapore’s appeal, the question is whether it was an abuse of discretion for the trial court to have denied Singapore’s motion to dismiss on the ground of forum non conveniens. We will consider this question on Singapore’s appeal to us. We state this because Singapore was never joined as a party to Air France’s original petition for a writ of mandamus, although to judge from its briefs Singapore assumes it was joined. Singapore refers to our order of May 25, 1978, as having granted it leave to join in the petition of Air France under Supreme Court Rule 381 (58 Ill. 2d R. 381). That order, however, simply granted Singapore leave to transfer its Rule 308 interlocutory appeal from the appellate court to this court and to consolidate the cause with Air France’s petition for mandamus which was pending before us and with its previously transferred appeal.

The doctrine of forum non conveniens was succinctly described in Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514:

“Forum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration.
In the application of these basic considerations a court may decline jurisdiction of a case ‘even though it may have proper jurisdiction over all parties and the subject matter involved’ (Whitney v. Madden (1948), 400 Ill. 185, 189, cert. denied, 335 U.S. 828, 93 L. Ed. 382, 69 S. Ct. 55), whenever it appears that there is another forum that can better ‘serve the convenience of the parties and the ends of justice.’ (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606.)”

Whether particular facts and circumstances warrant dismissal of a case on the ground of forum non conveniens rests primarily within the discretion of the trial court. The court’s decision will be reversed on review if it can be said that in deciding as it did there was an abuse of discretion. Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 4; Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606; Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 159; Whitney v. Madden (1948), 400 Ill. 185, 190.

A comprehensive statement of factors to be weighed in considering dismissal of a case under forum non conveniens is found in the often cited case of Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843:

“Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. ***
If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwiUing, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. *** The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.”

The only connection between the forum in which the suit was brought, the circuit court of Cook County, and Singapore is the circumstance that Singapore, which is not an American corporation, maintains a sales office in Illinois, although it operates no passenger flights into or out of the United States. All of the plaintiffs are nonresident aliens, and no plaintiff purchased a ticket in the United States or was ticketed to a final destination in this country. The occurrences giving rise to this suit took place in, or en route to, Bahrain, Greece, Libya, and Uganda. The substantive law which would at a trial be applied to the plaintiffs’ claims would be that of those, and possibly of other, foreign countries. Intricate questions involving foreign law may have to be resolved. (Cf. Marchlik v. Coronet Insurance Co. (1968), 40 Ill. 2d 327.) None of the conduct of which the plaintiffs complain occurred in Illinois. It is difficult, indeed, to assume a situation in which the parties and operative facts of a case have a lesser connection with the forum of Cook County.

A motion to dismiss on the ground of forum non conveniens presupposes that more than one court can be used as a forum. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 515.) Singapore has suggested the United Kingdom as an alternative forum; all of the defendants operate commercial flights into London and are amenable to service of process there. Singapore also points out that the courts of the United Kingdom are thousands of miles closer to all sources of proof; discovery has already commenced in London, Singapore states, and at least one so-called protective suit has been filed in England by one of the plaintiffs in this suit. Of course, Singapore and Air France operate flights into and out of Greece, where the hijackers alighted from one carrier’s plane and boarded the other’s; and Singapore, Air France and Gulf all operate flights into and out of France and the Netherlands. Any of these potential forums would provide, in varying degrees, greater “relative ease of access to sources of proof,” and lesser “cost of obtaining attendance of willing witnesses” than a forum in the center of the United States. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.

We must take notice, too, of the crowded condition of the dockets of the circuit court of Cook County, “congested with litigation having a closer connection to it than the cause here concerned” (Marchlik v. Coronet Insurance Co. (1968), 40 Ill. 2d 327, 336), and the long delays between suits filed and jury verdicts obtained. See Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 6.

Too, as we observed earlier in this opinion, the Supreme Court has stated: “Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.” (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) This factor and the now overburdened condition of the dockets in the circuit court of Cook County which we have just described must be considered important in this case, which involves an incident which occurred thousands of miles from the forum, and which does not involve a single party who is a citizen of Illinois or, for that matter, of the United States.

Referring to suits by noncitizen and nonresident plaintiffs based on events that occurred outside the United States and that involved the application of foreign law, courts have allowed motions for dismissal on the ground of forum non conveniens in the absence of special and unusual circumstances. In Fitzgerald v. Westland Marine Corp. (2d Cir. 1966), 369 F.2d 499, the court affirmed the dismissal, on grounds of forum non conveniens, of a negligence action brought by a public administrator on behalf of the estates of 31 Spanish nationals and one Yugoslavian national against corporations of Japan and British Columbia, and a New York corporation, against whom suit was dismissed on other grounds. In answer to the plaintiffs’ contention that New York was the only jurisdiction where all three defendants could be sued at once, the court noted that the complaint against the New York corporation had already been properly dismissed and that no showing had been made of the unavailability of another forum in which the two remaining defendants could be sued. The reasons given for finding in favor of the defendants were that nearly all relevant witnesses to the main issue resided in Japan, no compulsory process for witnesses was available, the cost of bringing witnesses to New York would be exorbitant, New York had little connection with the accident, which occurred off the coast of Alaska, the resolution of legal questions would entail interpretation of Japanese and Canadian law, and all deceased crewmen, with one possible exception, were foreigners.

Vanity Fair Mills, Inc. v. T. Eaton Co. (2d Cir. 1956), 234 F.2d 633, cert. denied (1956), 352 U.S. 871, 1 L. Ed. 2d 76, 77 S. Ct. 96, involved a trademark-infringement and unfair-competition action. The suit was brought against Canadian defendants on a cause of action which arose in Canada, and it presented Canadian trademark issues which would be governed by Canadian trademark law. The court affirmed a dismissal of the suit on the grounds of forum non conveniens as to the above-described portion of the complaint, even though the plaintiff was an American corporation.

Among the many cases in which motions for dismissal were allowed on the ground of forum non conveniens where the factors present resembled those we are considering here are the following: Spencer v. Alcoa Steamship Co. (E.D.N.Y. 1963), 221 F. Supp. 343, aff’d (2d Cir. 1963), 324 F.2d 957; Heitner v. Zim Israel Navigation Co. (S.D.N.Y. 1957), 152 F. Supp. 3; To Po Nyo v. J. Fritz Co. (1971), 38 App. Div. 2d 528, 326 N.Y.S.2d 868, appeal dismissed (1972), 30 N.Y.2d 772, 284 N.E.2d 582, 333 N.Y.S.2d 430; Lambiris v. Neptune Maritime Co. (1971), 38 App. Div. 2d 528, 326 N.Y.S.2d 862; Hernandez v. Cali, Inc. (1969), 32 App. Div. 192, 301 N.Y.S.2d 397, aff’d mem. (1968), 27 N.Y.2d 903, 265 N.E.2d 921, 317 N.Y.S.2d 625; Carey v. Southern Peru Copper Corp. (1968), 20 App. Div. 2d 744, 287 N.Y.S.2d 599; Gilchrist v. Trans-Canada Air Lines (1966), 27 App. Div. 524, 275 N.Y.S.2d 394; Faulkner v. S.A. Empresa de Viaco Airea Rio Grandense (Fla. App. 1969), 222 So. 2d 805. See also Canada Malting Co. v. Paterson Steamships, Ltd. (1932), 285 U.S. 413, 423, 76 L. Ed. 837, 842-43, 52 S. Ct. 413; Moutzouris v. National Shipping & Trading Co. (S.D.N.Y. 1961), 196 F. Supp. 482; Monteiro v. Sociedad Mar. San Nicolas, S.A. (S.D.N.Y. 1959), 175 F. Supp. 1, rev’d on other grounds (2d Cir. 1960), 280 F.2d 568, cert. denied (1960), 364 U.S. 915, 5 L. Ed. 2d 228, 81 S. Ct. 272; De Sairigne v. Gould (S.D.N.Y. 1949), 83 F. Supp. 270, 272, aff’d (2d Cir. 1949), 177 F.2d 515, cert. denied (1950), 339 U.S. 912, 94 L. Ed. 1338, 70 S. Ct. 571.

The cases offered by the plaintiffs to support their contention that the case should be retained in the circuit court of Cook County involved circumstances importantly different from those here. In Varkonyi v. S.A. Empresa De Viacao Airea Grandense (Varig) (1968), 22 N.Y.2d 333, 239 N.E.2d 542, 292 N.Y.S.2d 670, the Court of Appeals of New York ordered reconsideration of an order dismissing on the ground of forum non conveniens, but the court did so in the light of “special and unusual circumstances” (22 N.Y.2d 333, 338, 239 N.E.2d 542, 544, 292 N.Y.S.2d 670, 674). Among those special and unusual circumstances it found were that other actions against the defendants based on the same occurrence were pending in Federal and State courts in New York. It had been agreed by the parties that pretrial discovery would be consolidated among those cases to conserve time and expense. Another circumstance was that there was an American defendant, a manufacturer, and the issue of the manufacturer’s liability was inseparably connected with the issue of the airline’s faulty operation and maintenance. Eck v. United Arab Airlines, Inc. (2d Cir. 1966), 360 F.2d 804, simply did not involve forum non conveniens. The holding of the court was that the trial court had jurisdiction under article 28(1) of the Warsaw Convention. The plaintiff, whose residence was in California, had purchased her ticket in California through an agent of the defendant carrier.

The other cases the plaintiffs cite (Motor Distributors v. Olaf Pedersen’s Rederi A/S (5th Cir. 1956), 239 F.2d 463, cert. denied (1957), 353 U.S. 938, 1 L. Ed. 2d 760, 77 S. Ct. 816, and Kloeckner Reederei Und Kohlenhandel, G.M.B.H. v. A/S Hakedal (2d Cir. 1954), 210 F.2d 754, appeal dismissed (1954), 348 U.S. 801, 99 L. Ed. 633, 75 S. Ct. 17) were cases involving collisions on the high seas and questions of Federal admiralty jurisdiction. Motor Distributors simply acknowledged the right of a libelant possessing a maritime lien to proceed in the jurisdiction where the vessel was found, and Kloeckner recognized the right of a libelant to sue an alien defendant where his property could be attached.

We consider that the circuit court of Cook County is a distant, uninvolved and inappropriate forum in relation to the parties and incidents that occurred thousands of miles from Illinois. There are other forums as between the plaintiffs and Singapore (and the other defendants as well) that would better serve the accomplishment of justice, the convenience of the parties, and the courts. The trial court abused discretion in denying the motion of Singapore to dismiss on the ground of forum non conveniens.

For the reasons given, the order of the circuit court denying the motions of Air France and of Singapore to dismiss are vacated and the cause is remanded to the circuit court of Cook County with directions to dismiss the action as to Air France and Singapore. In view of the disposition we make it is unnecessary to consider the petition of Air France for a writ of mandamus; the petition is accordingly dismissed.

50584 — Petition dismissed.

50769 Order vacated; cause remanded, with directions.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 49897.
    THE CITY OF SPRINGFIELD et al., Appellees, v. ROBERT H. ALLPHIN, Director of Revenue, et al.—(Robert H. Allphin, Appellant.)

      Opinion filed Oct. 6, 1978.
    Rehearing denied Jan. 25, 1979.

      KLUCZYNSKI, J., took no part.
    William J. Scott, Attorney General, of Springfield (Thomas R. Meites, Special Assistant Attorney General, of Chicago, and David M. Frisse, John Brunsman and Samuel Sorich, Assistant Attorneys General, of counsel), for appellant.
    Frank M. Pfeifer and Thomas W. Kelty, of Pfeifer & Kelty, P.C., and Fredric Benson, Corporation Counsel, of Springfield, for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This case involves several aspects of the relationship between Illinois municipalities, which may impose certain taxes, and the State of Illinois, whose agents collect those taxes and distribute to the municipalities the revenue therefrom. Because of the complex nature both of that relationship itself, and of the role of the courts vis-a-vis that relationship, we deem it necessary to set forth the facts of the dispute in some detail.

Plaintiff city of Springfield is an Illinois municipality which has, pursuant to sections 8—11—1 and 8—11—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, pars. 8—11—1, 8— 11—5), enacted a municipal retailers’ occupation tax and a municipal service occupation tax (Municipal Code of Springfield, secs. 41.33 through 41.39). Plaintiff Illinois Municipal League is an unincorporated association of Illinois municipalities. (See Ill. Rev. Stat. 1973, ch. 24, par. 1—8—1.) It apparently is conceded that some or all of the league’s member municipalities also have enacted such taxes. (For convenience, the city and the league’s member municipalities hereinafter will be referred to collectively as “plaintiffs” or “plaintiff municipalities.”)

Defendant Robert Allphin was the Director of Revenue at the institution of this cause and, as such, was the officer in charge of the Illinois Department of Revenue. (See Ill. Rev. Stat. 1973, ch. 127, par. 4.) The Department is empowered to collect the municipal retailers’ occupation tax and the municipal service occupation tax on behalf of plaintiffs. (Ill. Rev. Stat. 1973, ch. 24, pars. 8—11—1, 8— 11—5.) In doing so, the Director was empowered to enforce plaintiffs’ ordinances. (Ill. Rev. Stat. 1973, ch. 127, par. 39bl.) After collecting the tax, the Department was required to “forthwith pay over to the State Treasurer, ex officio, as trustee, all taxes and penalties collected.” (Ill. Rev. Stat. 1973, ch. 24, pars. 8—11—1, 8—11—5.) On or before the 25th day of each calendar month, the Department was required to certify to the State Comptroller the amount of money payable to plaintiffs, as determined according to a statutory formula. The formula calls for the State’s retention of a specified percentage of the amount otherwise payable to plaintiffs, to compensate the State for the cost of collecting and administering the tax. Within 10 days of the receipt of the Director’s disbursement certification, the State Comptroller must draw orders for the disbursement of plaintiffs’ share and for the deposit of the State’s share into the General Revenue Fund. Ill. Rev. Stat. 1973, ch. 24, pars. 8—11—1, 8-11-5.

Public Act 78 — 1255 reduced the State’s share from 4% to 2%. The central issue in this case is whether the Act became effective on December 5, 1974, or on July 1, 1975. The Director claims that the Act did not become effective until the latter date. Accordingly (with an exception not relevant here), during the period December 5, 1974, through June 30, 1975, he followed the old formula and certified that the larger amount be withheld by the State, and a correspondingly smaller amount be disbursed to plaintiffs.

Plaintiffs, however, claim that the Act became effective on the earlier date, and that in the interim (between December 5 and June 30) the Director wrongfully certified that the higher amount be withheld, resulting in the State’s wrongfully withholding about $3 million from the plaintiff municipalities. In count I of their first amended complaint, plaintiffs sought a declaratory judgment (see Ill. Rev. Stat. 1973, ch. 110, par. 57.1) that the Act became effective on the earlier date. In counts II through IV plaintiffs seek reimbursement from funds currently being collected by the State. (The pleadings, however, do not precisely describe the funds to be placed into the protest fund. E.g., count II, paragraph 11, refers to “tax revenues presently being collected,” and count III, paragraph 10, refers to “sales tax receipts presently being collected.”)

Defendants moved to dismiss the amended complaint, arguing (1) that the Act did not become effective until the later date, and, alternátively, (2) even if the Act became effective on the earlier date, the circuit court was without power to grant the relief requested. The circuit court granted judgment for defendants as to count I and dismissed counts II through IV.

On appeal, the Appellate Court, Fourth District, reversed as to count I (agreeing with plaintiffs’ position on the effective date of the Act). As to counts II through IV, the appellate court in effect vacated the circuit court’s judgment, and remanded the cause to permit plaintiffs to amend their pleadings to pray for an alternative remedy suggested by the appellate court. (50 Ill. App. 3d 44, 50-51.) We granted defendant Allphin’s petition for leave to appeal. We affirm the judgment of the appellate court as to count I, modify the judgment as to the remaining counts, and remand the cause to the circuit court. (For convenience, we will continue to refer to “defendants” even though the defendant Treasurer and the defendant Comptroller no longer are parties and have • taken no position on the merits, promising instead that they will perform whatever ministerial acts are necessary to enforce the decree.)

We postpone discussion of the effective date of the Act until we have addressed defendants’ other arguments. Defendants first contend that the circuit court was without power to grant the requested relief because this action was, in effect, a suit against the State, and as such only could have been brought in the Court of Claims. (See Ill. Rev. Stat. 1973, ch. 127, par. 801.) We disagree. The drafters of our 1970 constitution considered the question of sovereign immunity to suits against the State in some detail. (See generally 2 Record of Proceedings, Sixth Illinois Constitutional Convention 871 (hereinafter cited as Proceedings); 3 Proceedings 1829-45.) In the end, the drafters adopted language permitting the General Assembly to reenact sovereign immunity. “Though our constitution of 1970 abolished sovereign immunity (Ill. Const. 1970, art. XIII, sec. 4) it was restored by the General Assembly, as the Constitution permitted.” (Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 394.) Thus, the net effect of the legislature’s response to the “sovereign immunity” provisions of the 1970 Constitution must be viewed as an adoption of the law as it existed under the 1870 Constitution. Yet even under the 1870 Constitution, the instant action would not be considered a suit against the State.

“Whether or not a particular action falls within the prohibition of the constitution has not been determined solely by an identification of the formal parties to the record. The determination has rather depended upon the particular issues involved and the relief sought.” (Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37.) Where the issue is whether a State officer has refused to disburse appropriated funds according to law, and the relief sought is an injunction directing that those funds be released in accordance with the appropriation, the action is not one against the State. (County of Cook v. Ogilvie (1972), 50 Ill. 2d 379, 383.) This is because “[t] he presumption obtains that the State, or a department thereof, will not, and does not, violate the constitution and laws of the State, but that such violation, if it occurs, is by a State officer or the head of a department of the State, and such officer or head may be restrained by a proper action instituted by a citizen.” (Schwing v. Miles (1937), 367 Ill. 436, 441-42.) On the other hand, where the action is, in effect, one to quiet title in realty, adverse to the interest of the State (where there is no issue as to the lawfulness of a State officer’s actions in obtaining title), the action is against the State. Schwing v. Miles (1937), 367 Ill. 436. See also Georgeoff v. State (1965), 32 Ill. 2d 534, 538.

More difficult are some of the cases involving suits by taxpayers seeking refunds of disputed taxes. In Montgomery Ward & Co. v. Stratton (1930), 342 Ill. 472, 477, the taxpayer availed itself of a statutory remedy of paying a disputed tax under protest (which temporarily prohibited the deposit of the disputed amount into the State treasury), but then failed to pursue the case in the manner provided by the statute. Instead the taxpayer sought to reduce its future taxes by the disputed amount. This court held that the taxpayer was barred from “obtain [ing] indirectly what it could not obtain directly” (a refund from the State treasury). (342 Ill. 472, 477.) However, there is some ambiguity in the opinion, as to whether its holding was based upon constitutional grounds, or merely an equitable one, i.e., waiver. Our research has revealed no subsequent decision of this court relying upon Montgomery Ward in support of the broad proposition for which it is advanced by defendants — that the Constitution bars one from obtaining indirectly what one could not obtain directly.

Adams v. Nudelman (1940), 375 Ill. 217, is of limited applicability here, because its applicability has been narrowed substantially in subsequent decisions of this court. In Adams, taxpayers filed suit for a refund of taxes which had not been paid under protest and, consequently, already had been paid to the State treasury. Plaintiffs sought relief either out of the State treasury, or out of funds currently being collected by the State and not yet deposited in the treasury. This court held (1) that the suit was against the State, and, alternatively, (2) that no relief could be had without a legislative appropriation. (375 Ill. 217, 219.) However, almost immediately, in People ex rel. Swartchild & Co. v. Carter (1941), 376 Ill. 590, 594, and People ex rel. Adams v. McKibben (1941), 377 Ill. 22, 24, the court narrowed Adams second alternative holding, limiting it to the prevention of payments directly from the State treasury, and refusing to apply it to court or administrative orders which had the effect of withholding funds from the State treasury. A decade later, in Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, the court also narrowed Adams first alternative holding, stating that “a proceeding to review the determination of an agency of State government which, itself, has the force of a judicial determination” is not a suit against the State. 410 Ill. 35, 38.

While Moline Tool was a proceeding under the Administrative Review Act (Ill. Rev. Stat. 1949, ch. 110, par. 264 et seq.), its applicability is not confined to such cases. (E.g., E.H. Swenson & Sons v. Lorenz (1967), 36 Ill. 2d 382, 385.) The Swenson case also is particularly significant in that, like the instant case, it involved a claim that a State department wrongfully directed that certain funds be withheld from plaintiffs. This court rejected defendants’ claim that, because the burden of any declaratory judgment would fall upon the State, the action was one against the State, and therefore barred by sovereign immunity. Rather, the court intimated that the action was, in essence, a review of the legality of the defendants’ withholding of funds from plaintiffs, and as such was not a suit against the State. Significantly, the court capped its analysis by observing: “We think that the basic nature of the plaintiffs ’ claim is not altered by the circumstance that in this case the Department *** was able to resort to self-help ***.” 36 Ill. 2d 382, 385.

Our review of the foregoing cases leads us to conclude that the issues involved in the instant case (the effective date of a statute) and the relief requested (a declaratory judgment and the withholding of certain funds from the State treasury) do not render the instant case a suit against the State. That the relief requested necessarily will have an impact on the State’s General Revenue Fund is not dispositive. As in Swenson, defendants’ resort to “self-help,” in ordering the deposit of the disputed funds into the State’s General Revenue Fund does not prohibit the courts from fashioning an appropriate form of relief. The cases relied upon by defendants for the contrary proposition (e.g., Adams v. Nudelman; Montgomery Ward & Co. v. Stratton), to the extent they remain viable, involve the ancient and much-litigated adversary relationship between the taxpayer and the tax collector. Extensive statutory procedures exist for the protection of the taxpayer’s interest in an orderly fashion which also will protect the State’s interest. A taxpayer’s failure to avail himself of such procedures may constitute a waiver of his rights against the State. (See, e.g., S.A.S. Co. v. Kucharski (1972), 53 Ill. 2d 139, 142.) The instant case, however, involves the fiduciary relationship between the State government’s central tax-collection authorities, and local governments who would be, in practical effect, at the mercy of those authorities if there were no equitable means to remedy unlawful actions of State officers. Neither our constitution nor any act of the General Assembly contemplates that State officers be given such unlimited power.

Finally, contrary to defendants’ position, the framers of our 1970 constitution apparently did not intend the requirement that all “payments from public funds” be made “only as authorized by law” (Ill. Const. 1970, art. VIII, sec. 1(b)) as a limitation upon the powers of the circuit courts to fashion appropriate remedies. (See 2 Proceedings 871 (colloquy of delegates Kamin and Cicero).) (None of the foregoing, however, is intended to address limitations imposed upon the judicial power of the United States by the eleventh amendment to the United States Constitution. (Cf. Edelman v. Jordan (1974), 415 U.S. 651, 668, 39 L. Ed. 2d 662, 675-76, 94 S. Ct. 1347.) There might well be a difference between a State’s amenability to suit in State and Federal court. See, e.g., McDonald v. Illinois (7th Cir. 1977), 557 F.2d 596.)

We now turn our attention to the merits of the underlying dispute. Our constitution directs the General Assembly to “provide by law for a uniform effective date for laws passed prior to July 1 of a calendar year,” and further provides that bills “passed after June 30 shall not become effective prior to July 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date.” (Ill. Const. 1970, art. IV, sec. 10.) It therefore is important not to confuse the date on which the bill “becomes a law” with the date on which that law becomes effective; the two need not coincide.

To execute its responsibilities under section 10 of article IV, the legislature enacted and the Governor approved “An Act in relation to the effective date of laws” (Ill. Rev. Stat. 1971, ch. 131, par. 21), which provided as follows:

“A law passed prior to July 1 of a calendar year and after June 30, 1971, shall become effective on October 1 following its becoming a law unless by its terms it specifically provides for a different effective date. A law passed prior to July 1, 1971, shall become effective on July 1, 1971, or upon its becoming a law, whichever is later, unless such law by its terms specifically provides for a different effective date.”

In People ex rel. Klinger v. Howlett (1972), 50 Ill. 2d 242, this court held that a bill which had been the subject of an amendatory veto by the Governor (see Ill. Const. 1970, art. IV, sec. 9(e)) did not “pass” for purposes of the foregoing constitutional and statutory provisions until the legislature had approved the Governor’s specific recommendations. The court reasoned that “passage” meant “the last legislative act necessary so that the bill would become law upon its acceptance by the Governor without further action by the legislature” (50 Ill. 2d 245, 247), and that the approval of the Governor’s recommended amendments to the language previously adopted by the legislature was such a legislative act, before which no bill may be said to have “passed” (50 Ill. 2d 245, 247-48).

Subsequent to the 1972 decision in People ex rel. Klinger v. Howlett, the legislature passed and the Governor approved “An Act to revise the law in relation to the effective date of laws ***” (1973 Ill. Laws 196, Ill. Rev. Stat. 1973, ch. 131, pars. 21 through 26), which, inter alia, provided that “[f] or purposes of determining the effective dates of laws, a bill is ‘passed’ at the time of its final legislative action prior to presentation to the Governor pursuant to paragraph (a) of Section 9 of Article IV of the Constitution” (Ill. Rev. Stat. 1973, ch. 131, par. 23). We need not and we do not decide whether this new statutory definition of “passage” is constitutional and, if so, what impact, if any, it has upon the effective date, as determined according to Klinger, of laws which have been subject to an amendatory veto. (But see Gherardini, Effective Date of Laws, 11 J. Mar. J. Prac. & Proc. 363, 375 (1978).) The instant case involves only the question of the effective date of a law which had been the subject of a simple, nonamendatory veto, and we hold that, in this situation, the new statutory provision accurately codifies our interpretation of the constitutional provision.

Public Act 78—1255, which did not contain an effective date, originally passed in the General Assembly (as Senate Bill 265) on May 29, 1974. The Governor vetoed the bill on July 26, 1974; the Senate voted by the requisite three-fifths majority to override the veto on November 21, 1974, and the House did the same on December 5, 1974, on which date the bill became a law. (See Ill. Const. 1970, art. IV, sec. 9.) Thus, the question presented is whether, for purposes of section 10 of article IV (Ill. Const. 1970, art. IV, sec. 10) and section 1 of “An Act in relation to the effective date of laws” (Ill. Rev. Stat. 1975, ch. 131, par. 21), Senate Bill 265 “passed” at the time of its initial passage by the General Assembly. We conclude that it did.

Unlike the override of an amendatory veto, the override of a simple nonamendatory veto does not involve any additional “legislative act” (50 Ill. 2d 242, 247), as that term is used in Klinger, because the original language of the bill remains intact, and no additional time need lapse to assure that the public has adequate notice of that language. Rather, the situation here is analogous to that in Board of Education v. Morgan (1925), 316 Ill. 143 (construing Ill. Const. 1870, art. IV, sec. 13), where a bill passed by the General Assembly prior to July 1 and approved by the Governor subsequent to July 1 was, for purposes of determining its effective date, held to have “passed” prior to July 1. In determining the effective date of an act, we see no reason to treat the legislature’s override of the Governor’s simple veto any differently than the Governor’s signature. Each has the same effect on the contents of the enactment and'the public’s notice thereof. To the extent that the purpose of determining the effective date of an act according to the date of its passage is to afford the public adequate notice of the contents of the enactment (see, e.g., 6 Proceedings 1390), actions which similarly affect the contents should have a similar effect upon their effective date. To the extent that the constitutional provision is intended as a check upon the year-round drafting of laws by the legislature (see, e.g., 4 Proceedings 2900-03), that intent also is in no way undermined by our holding today.

Although it is true that the Constitution itself uses the term “passes” to describe the legislature’s override of the Governor’s veto as well as the legislature’s initial passage of a bill (Ill. Const. 1970, art. IV, sec. 9(c)), that usage is not dispositive of the meaning of the term in the different context of section 10 of article IV. (Cf. generally Chapman v. County of Will (1973), 55 Ill. 2d 524.) We find additional support for this conclusion in an opinion of the Attorney General (1975 Ill. Atty. Gen. Op. 77) regarding the effective date of Public Act 78—1257, which has a legislative history similar to the act at issue here. As the appellate court correctly noted (50 Ill. App. 3d 44, 47), a well-reasoned opinion of the Attorney General is entitled to considerable weight in resolving a question of first impression in this State regarding the construction of an Illinois statute (People v. Simpkins (1977), 45 Ill. App. 3d 202, 207; Alsen v. Stoner (1969), 114 Ill. App. 2d 216, 222; Strat-O-Seal Manufacturing Co. v. Scott (1966), 72 Ill. App. 2d 480, 485; City of Champaign v. Hill (1961), 29 Ill. App. 2d 429, 442; see generally Scott, The Role of Attorney General’s Opinions in Illinois, 67 Nw. U.L. Rev. 643, 649-53 (1972)), though, of course, such opinions are not binding upon this court (People v. Savaiano (1976), 66 Ill. 2d 7, 16; Rogers Park Post No. 108 v. Brenza (1956), 8 Ill. 2d 286, 292). Accordingly, we hold that Public Act 78—1255 became effective on December 5, 1974, the day on which the second house overrode the Governor’s veto.

Finally, because we hold that the remedy requested by plaintiffs was an appropriate one, we need not reach the merits of the alternative remedy suggested by the appellate court. We do direct, however, that, upon remand, the circuit court grant plaintiffs leave to amend their complaint to define more precisely the tax revenue from which the plaintiffs may obtain reimbursement. The relief requested should be amended to limit the funds from which each plaintiff municipality may obtain relief to the municipal retailers’ occupation tax revenues and municipal service occupation tax revenues subsequently collected by the Director on its behalf. The net effect of such relief should be to reduce the amount of such taxes withheld by the State until the earlier overwithholding is compensated for.

For the foregoing reasons, the judgment of the appellate court is affirmed, as modified, and the cause is remanded to the circuit court with directions to proceed in accordance with the views expressed in this opinion.

Affirmed as .modified; cause remanded, with directions.

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