author: MR. JUSTICE RYAN MR. JUSTICE UNDERWOOD,

text:
    (No. 49091.
    NEIL ANDREWS et al., Appellees, v. CHARLES P. FOXWORTHY, County Treasurer, Appellant.

      Opinion filed Jan. 27, 1978.

    Rehearing denied March 30, 1978.

      UNDERWOOD and MORAN, JJ., dissenting.

      Richard J. Doyle and Thomas J. Fahey, State’s Attorneys, of Danville (Thomas E. Brannigan, Special Assistant State’s Attorney, of Chicago, and Richard Kurth, Assistant State’s Attorney, of counsel), for appellant.
    Wilber & Youck, of Colfax (David A. Youck, of counsel), for appellees.
    Dennis P. Ryan, State’s Attorney, of Waukegan (William J. Blumthal, Assistant State’s Attorney, of counsel), for amicus curiae Robert G. Jasper, County Supervisor of Assessments.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Four hundred and eight taxpayers in Vermilion County filed a petition for a refund of part of their 1972 real estate taxes, alleging that part of the tax was invalid since the supervisor of assessments had failed to publish increases in assessments made in a nonquadrennial year by July 10, 1972, as required by section 103 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, par. 584). The petition alleged that the taxes had been paid in full, and tax receipts stamped “Paid Under Protest” were attached to the petition. The trial judge allowed the plaintiffs to amend the petition to conform with the requirements of section 194 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 675), and the case proceeded as a hearing on tax objections. On stipulated facts, the trial court held tliat the failure to publish the assessment changes before July 10 in 1972, a nonquadrennial year, rendered the assessment increases void. The appellate court affirmed (43 Ill. App. 3d 438), with one justice dissenting, and we granted leave to appeal.

The primary issue in this court is whether the statutory publication date for increased assessments in a nonquadrennial year is merely directory or is mandatory, such that tardy publication invalidates the increase. The relevant portion of section 103 of the Revenue Act, pertaining to counties of less than 2,000,000 in population, provides:

“In years other than years of a quadrennial assessment of real property, the *** supervisor of assessments *** shall publish the assessment of personal property in full and a list of real estate for which assessments have been added or changed since the last preceding assessment, together with the amounts of the assessments on such real estate. Such publication shall be made on or before July 10, of that year in counties with less than 150,000 inhabitants ***, and shall be printed in some public newspaper or newspapers published in the county; or shall be mailed to every person in that township ***: Provided, that in every county containing less than 2,000,000 inhabitants, in addition to the publication of the list of assessments of real property ***, as provided above, a notice shall be mailed by the *** supervisor of assessments *** to each taxpayer at his address ***. In every township or assessment district in which there is published one or more newspapers of general circulation, the list of such township shall be published in one of the newspapers.” (Emphasis added.) Ill. Rev. Stat. 1971, ch. 120, par. 584.

The facts in this cause were stipulated in the trial court. The supervisor of assessments in Vermilion County increased certain real property assessments in 1972, a nonquadrennial year pursuant to section 46 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 527). He failed to publish the increases in a newspaper by July 10, 1972, but did publish in proper form on or before October 28, 1972. In addition, after July 10, 1972, but sometime prior to publication, the supervisor of assessments also mailed a notice to the taxpayers advising them that their assessments had been increased and that they had 10 days from the date of publication in the newspaper to file a written complaint with the board of review. The parties also stipulated that the board of review had lawfully remained in session until January 6, 1973. The trial court concluded that the defendant’s failure to comply with the statutory publication date rendered the assessment increases void. Defendant filed a motion to reconsider and attempted to introduce new evidence that 31 of the plaintiffs had, in fact, filed complaints with the board of review. The trial court denied admission of the new evidence and the motion to reconsider, but did allow two petitions to intervene by school districts.

The appellate court affirmed the trial court’s refund order and, relying on People v. Jennings (1954), 3 Ill. 2d 125, held that the statutory publication requirements must be strictly followed. Jennings involved a total failure to publish assessments of personal property as required by statute. In that case, this court held the tax void, noting that the publication requirement was mandatory in view of its nature and purpose.

The defendant attempts to distinguish Jennings on the grounds that Jennings involved a complete failure to pub fish personal property assessments, while the instant case only deals with a late publication of real property assessment increases. Defendant argues that since the taxpayers here had actual mailed notice in addition to publication, even though both were late, Jennings is inapplicable. Defendant’s principal contention appears to be that the statutory publication date is directory, not mandatory, and that failure to strictly comply with the specified date does not invalidate the increases.

Relatively few cases have considered the violation of publication requirements under section 103. After examining these cases and considering the nature of the statute, we cannot agree with the defendant that Jennings is distinguishable from the case at bar, nor do we agree that the date of publication is merely directory. While the factual situation in Jennings is not identical to the case at bar, the rationale of that decision is nonetheless applicable to the present case. Furthermore, an examination of the language and purpose of the publication provision clearly denotes its mandatory character. As a mandatory statute, strict compliance is required. We note at this time that the taxpayers do not allege a violation of due process; they contend that the defendant has violated the duty imposed on him by statute. Hence, those cases involving questions of notice and hearing pursuant to due process requirements will only be considered peripherally.

In People v. Jennings (1954), 3 Ill. 2d 125, the State sued the defendant to recover personal property taxes for 1951. However, the list of personal property assessments for 1951 had not been published pursuant to section 103 of the Revenue Act. In Jennings this court quoted from French v. Edwards (1872), 80 U.S. (13 Wall.) 506, 511, 20 L. Ed. 702, 703, which sets forth the general rule governing whether the provisions of a statute are to be mandatory or directory, as follows:

“ ‘There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.’” 3 Ill. 2d 125, 127.

In Jennings the court also quoted from Lyon v. Alley (1889), 130 U.S. 177, 185, 32 L. Ed. 899, 902, 9 S. Ct. 480, 483, as follows:

“ ‘The provisions of statutes as to the form and mode of assessments, as to tax lists, and the place where the tax lists are to be deposited, are, according to the highest authority, designed for the benefit of the taxpayers and the protection of their property from sacrifice.’” 3 Ill. 2d 125, 127-28.

In Jennings, in holding that the provisions of section 103 were mandatory, this court stated:

“Publication of the assessment roll is clearly not designed for the guidance of officers or the maintenance of order, system and dispatch in proceedings. Its purpose, like that of provisions concerning notice, is to afford the taxpayer information and an opportunity to ascertain whether the assessment is excessive or disproportionate. In view of its nature, therefore, the requirement is prima facie mandatory rather than directory, and failure to comply will vitiate the tax unless a contrary legislative intent is otherwise manifested.” 3 Ill. 2d 125, 128.

It should be noted that the publication requirements considered in Jennings are contained not only in the same section of the statute with which we are concerned in this case, but also in the same sentence of that section.

We believe that an analysis of the distinction between mandatory and directory statutes (particularly those prescribing conduct of public officials), together with a close examination of the language, nature and purpose of section 103, considered in light of the above authority, clearly indicates that the publication date is mandatory.

The statute itself contains the words “shall publish” and provides that “publication shall be made on or before July 10.” (Ill. Rev. Stat. 1971, ch. 120, par. 584.) The use of the words “shall” or “must” is generally regarded as mandatory. However, the term “shall” does not have a fixed or inflexible meaning. It can, in fact, be construed as meaning “may,” depending on the legislative intent. However, “ [w] here the word is employed with reference to any right or benefit to anyone, and the right or benefit depends upon giving a mandatory meaning to the word, it cannot be given a permissive meaning ***. [Citations.] ” (Clark v. Patterson (1905), 214 Ill. 533, 539; cf. Cooper v. Hinrichs (1957), 10 Ill. 2d 269, 272; 73 Am. Jur. 2d Statutes sec. 22 (1974).) Thus, proper interpretation of the provision cannot simply be based on its language; it must be grounded on the “nature, objects and the consequences which would result from construing it one way or another.” Carrigan v. Illinois Liquor Control Com. (1960), 19 Ill. 2d 230, 233.

In brief summary, when a statute prescribes the performance of an act by a public official or a public body, the question of whether it is mandatory or directory depends on its purpose. If the provision merely directs a manner of conduct for the guidance of the officials or specifies the time for the performance of an official duty, it is directory, absent negative language denying the performance after the specified time. If, however, the conduct is prescribed in order to safeguard someone’s rights, which may be injuriously affected by failure to act within the specified time, the statute is mandatory. Carrigan v. Illinois Liquor Control Com. (1960), 19 Ill. 2d 230, 233; see 67 C.J.S. Officers sec. 114 (1950); 72 Am. Jur. 2d State & Local Taxation sec. 709 (1974).

This court has held that provisions for publication and notice, such as the one at bar, are designed for the benefit and protection of taxpayers. As noted above, in Jennings we specifically emphasized that publication under section 103 was not designed for the guidance of public officers, but was designed to afford the taxpayers information and the opportunity to evaluate the reasonableness of their assessments.

Defendant contends that the notice mailed to the plaintiffs was sufficient to validate the tax. Although actual notice and the opportunity to be heard are sufficient to satisfy due process requirements (see People ex rel. Ball v. Anderson (1961), 21 Ill. 2d 396, 401; People v. Holmstrom (1956), 8 Ill. 2d 401, 406; Dietman v. Hunter (1955), 5 Ill. 2d 486), plaintiffs do not allege a violation of due process; they allege the violation of a statutory duty. The notices mailed to and received by the taxpayers were also sent subsequent to the July 10 deadline and suffer the same infirmities as a late publication. Also, as noted in Jennings, the purpose of the publication requirement is not alone to provide notice of the assessment to the taxpayer, but it is also to give the taxpayer an opportunity to ascertain whether the assessment is excessive or disproportionate. In People v. Holmes (1968), 98 Ill. App. 2d 11, 17, the appellate court stated:

“[I]n order for a taxpayer to determine if his assessment is disproportionate or excessive, he must be able to compare his assessment with other taxpayers.”

Therefore, aside from the fact that the mailed notice was not given within the time required by statute, it could not supplant the statutory requirement of publication.

In light of the nature and purpose of the publication requirement, therefore, we must conclude that section 103 is mandatory and requires strict and timely compliance. Since the petitioner failed to make timely publication as required by section 103, the tax resulting from the increase in assessment is invalid.

Defendant, however, also contends that section 235 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 716) constitutes a saving clause, and thus the tax should be held valid in spite of the late publication. Section 235 provides in relevant part:

“[N] o error or informality in the proceedings of any of the officers connected with the assessment, levying or collection of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof; and any irregularity or informality in the assessment rolls or tax lists, or in any of the proceedings connected with the assessment or levy of such taxes, or any omission or defective act of any other officer or officers connected with the assessment or levying of such taxes, may be, in the discretion of the court, corrected, supplied and made to conform to law ***.”

Defendant contends that failure to make timely publication is the type of error or informality specifically encompassed by section 235, especially since the substantial justice of the tax was not affected. He argues that eventual publication of the increased assessments indicates that defendant attempted to comply with the publishing requirement. We disagree. Eventual publication by itself is irrelevant to show any attempt to make timely publication. Under defendant’s reasoning, presumably any publication, no matter how late, would tend to show an attempt at compliance. We note that this argument was first raised on appeal. However, the records and briefs do not indicate that any attempt was made to comply with the publication date, nor do they disclose any explanation for defendant’s disregard of the statute. In addition, previous cases have interpreted section 235 as applicable only “where there has been an attempt to comply with the law but the attempt is not effective on account of some informality or clerical error.” (People v. Jennings (1954), 3 Ill. 2d 125, 129; People ex rel. Wangelin v. City of St. Louis (1937), 367 Ill. 57, 69.) We do not consider the failure to comply with a mandatory requirement of publication to be “some informality or clerical error.”

Defendant also urges that we consider the serious impact on taxing bodies and recipients of tax revenue as a result of holding the tax invalid. We note that publication may have occurred as late as October 28, more than three months after it was due. In addition, the mailed notice was also sent some time after July 10. While we are not unsympathetic to the loss of revenue involved here, we cannot sanction such delay in providing taxpayers with the required statutory publication of increased assessments. Although there is no prescribed date for publication in quadrennial years, it is our opinion that the legislature intended that taxpayers can at least rely on the July 10 deadline in nonquadrennial years where increases are not necessarily expected. A similar public policy argument was made in Jennings to which this court replied:

“It is argued that allowing the omission of a publication to defeat the tax would be contrary to public policy and against the best interests of the general public. The argument misconceives the function of this court. Such matters must be addressed to the General Assembly, which is entrusted with the duty of determining public policy and promoting the general welfare. This court can only ascertain and apply the intention expressed by that body. The legislature may readily indicate what the effect shall be, as it has with respect to other defects ***. [I] n the absence of appropriate provisions the nature of the requirement must govern the construction to be given by this court, and it must therefore be regarded as mandatory.” 3 Ill. 2d 125, 130-31.

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

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

In People v. Jennings (1954), 3 Ill. 2d 125, this court held that total failure to publish increased tax assessments is a valid objection under the Revenue Act of 1939 to payment of the tax based thereon. I agree with Jennings, but Jennings, in my judgment, does not support the result reached by the court in this case. The Jennings opinion indicates that court would not have reached the same conclusion here, and that delay in publication, as contrasted to a complete failure to publish, is not fatal where there is no showing that the taxpayer is prejudiced. Publication dates are mandatory only where, by their disregard, the taxpayer’s “rights might be and generally would be injuriously affected” (3 Ill. 2d 125, 127). Obviously a taxpayer’s rights “generally would be injuriously affected” where an increase in his assessment is never published and he has no notice of it. But that situation bears no resemblance to what occurred here. Not only was there published notice as the statute requires — in addition, the authorities mailed each taxpayer a notice of the increase. True, the notice was not published until after July 10, but the board of review remained in session for the purpose of hearing complaints. No taxpayer denies receiving notice, and each had the same opportunity to appear before the board of review that he would have had if publication had been made on July 10 as the statute directs. No taxpayer has made any attempt to demonstrate in what manner he has been prejudiced by the delay, and I can envision none.

I dislike taxes, inflation and governmental waste and inefficiency as much or more than most persons. But every member of this court is aware that few of the many ministerial acts required of county or State officials in the tax assessing and collecting process have been accomplished in recent years by the statutorily directed dates. If for that reason we are to now commence invalidating taxes without first requiring a showing of prejudice to the objecting taxpayer, the collection of taxes will be seriously impeded.

If an additional reason to sustain the tax is thought necessary, it is to be found, I believe, in section 235 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 716), since the delay is one “not affecting the substantial justice of the tax itself.” Mr. Justice Simkins, in his dissenting opinion in the appellate court, accurately interpreted the saving provision:

“Section 235 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 716) is specifically directed towards this kind of problem, that is, errors or informalities of procedure by the officials in the taxing process. Publication is not constitutionally required and could be eliminated altogether by the legislature. Infirmities in publication can even be retroactively eliminated by a curative act. (People v. Holmstrom (1956), 8 Ill. 2d 401, 134 N.E.2d 246.) There is a strong public policy behind section 235 that entire assessments should not be declared void due to a technicality when communties depend on these taxes to perform necessary functions of government. In view of that policy, the stipulated fact that plaintiffs received actual written notice, and the fact that plaintiffs did not show any prejudice from the belated publication, I would reverse the ruling of the trial court.” 43 Ill. App. 3d 438, 443.

In my judgment the majority opinion unnecessarily and substantially interferes with the tax-collection process. I would reverse the judgments of the appellate and circuit courts.

MR. JUSTICE MORAN joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE GOLDENHERSH MR. JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 49227.
    R. HERBERT ROSS, Appellee, v. THE CITY OF GENEVA, Appellant.

      Opinion filed Jan. 27, 1978.

    Rehearing denied March 30, 1978.

      MORAN, J., took no part.
    UNDERWOOD, J., dissenting.
    Ancel, Glink, Diamond & Murphy, of Chicago (Marvin J. Glink and John B. Murphy, of counsel), for appellant.
    Reid, Ochsenschlager, Murphy and Hupp, of Aurora (Timothy J. Reuland, Charles F. Thompson, Jr., and William C. Murphy, of counsel), for appellee.
    Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora (Peter K. Wilson, Jr., of counsel), for amicus curiae Geneva Chamber of Commerce.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, R. Herbert Ross, filed this action in the circuit court of Kane County against the defendant, the city of Geneva, “on behalf of himself and others similarly situated” seeking a declaratory judgment that certain of defendant’s ordinances “be declared unlawful, invalid, void and beyond the [defendant’s] statutory authority *** and in violation of Plaintiffs’ [constitutional] rights,” the recovery of money paid defendant under the provisions of the allegedly invalid ordinances, and other relief. The circuit court held the ordinances invalid, enjoined defendant from further collections thereunder and entered judgment in favor of plaintiff in the amount of $1,154. It held that the case could not be brought as a class action. Plaintiff appealed from that portion of the judgment holding that the cause was not properly brought as a class action, and defendant cross-appealed. The appellate court affirmed the judgment insofar as it held the ordinances invalid and enjoined further collections thereunder, but reversed the denial of the class action. (43 Ill. App. 3d 976.) We allowed defendant’s petition for leave to appeal. The facts are adequately stated, and the provisions of the ordinances are set forth in the opinion of the appellate court, and will be repeated only to the extent necessary to discuss the issues.

As authorised by division 117 of article 11 of the Illinois Municipal Code (Ill. Rev. Stat. 1961, ch. 24, par. 11—117—1 et seq.) defendant supplies electricity as a public utility. Under ordinances effective January 18, 1960, defendant established a commercial electric rate (Ordinance 60—1) and created a “Special Parking Improvement and Facilities Fund” (Ordinance 60—2). Ordinance 60—2 imposed a 10% surcharge on the electric bill of each commercial user and earmarked that surcharge for the parking fund to “be used for the purpose of acquiring parking facilities and improvements and the improvements and maintenance of present parking facilities and parking improvements.” These same provisions were included in defendant’s Municipal Code adopted May 7, 1962. On June 22, 1973, for the first time, the 10% surcharge was specifically shown on commercial users’ bills and noted as a “mise.” charge. Immediately upon receiving his June 22 bill, plaintiff made inquiry and objected to the surcharge. This action was filed on July 19, 1973. He paid the surcharge portion separately and indicated on the check that the payment was made under protest. Both the circuit and appellate courts held that there was no statutory authority for the imposition of the surcharge and that the provisions of the ordinances were invalid.

Contending that the ordinances were within the powers granted by the General Assembly, defendant argues that under the provisions of section 11—117—12 of the Illinois Municipal Code it may structure its charges for utility services to produce a profit and may use that profit to defray the general cost of government. It argues that pursuant to section 11—71—1 of the Illinois Municipal Code, it had authority to finance parking facilities in the manner provided by Ordinance 60—2, and may use “particular methods of funding in certain situations described by the State legislature.”

Defendant is not a home-rule unit (Ill. Const. 1970, art. VII, sec. 6) and is subject to the rule that the “powers of a municipal corporation are derived by it from the General Assembly. It has no inherent power. Legislation by a municipal corporation is valid only when it is authorized by statute, and statutes granting power to a municipal corporation are construed strictly against the municipality which claims the right to exercise the power. City of Chicago v. Moore, 351 Ill. 510.” (City of Chicago Heights v. Western Union Telegraph Co., 406 Ill. 428, 433.) Defendant’s authority to operate a public utility was granted it by section 11—117—1 of the Illinois Municipal Code, and its power to fix charges for the services provided was conferred by section 11— 117—12, which in pertinent part provided:

“Sec. 11—117—12. The charges fixed for the product supplied or the service rendered by any municipality shall be sufficient at least to bear all of maintenance and operation, to meet interest charges on the bonds and certificates issued on account thereof, and to permit the accumulation of a surplus or sinking fund to meet all unpaid bonds or certificates at maturity.” (Ill. Rev. Stat. 1961, ch. 24, par. 11-117-12.)

Its powers concerning the financing for the acquisition and maintenance of off-street parking facilities were conferred by division 71 of article 11 of the Illinois Municipal Code (ch. 24, par. 11—71—1 et seq.), which, with respect to financing, provided:

“Any municipality is hereby authorized to:
* * *
(e) Finance the acquisition, construction, maintenance and/or operation of such parking facilities by means of general tax funds, special assessments, special taxation, revenue bonds, parking fees, special charges, rents or by any combination of such methods; ***.” (Ill. Rev. Stat. 1963, ch. 24, par. 11-71-1.)

Defendant argues that the provisions of section 11—71—1(e) are “merely a grant of power rather than a limitation” and that the “absence of limiting language” in this and other sections cited authorizes it to operate its utility at a profit, use the profit to meet the general expenses of government, and that the ownership and operation of parking lots is a legitimate corporate purpose for which such profits may be expended.

We have considered the many issues raised and argued by the parties and conclude that it is not necessary to further discuss most of them. This record does not present the question whether defendant may operate a utility at a profit and expend the profits for general corporate purposes; it presents the very narrow question whether, within the ambit of the relevant statutes, defendant was authorized to levy a surcharge on commercial users of the electric services provided by its utility and use those funds for the construction and maintenance of parking lots. Ordinance 60—2, either as originally enacted or as presently codified, makes no reference to profits of the utility; the surcharge, as noted by the appellate court, is to be deposited in the Special Parking Improvement and Facilities Fund and used for the purpose of acquiring parking facilities and improvements without regard to whether profits are derived from the utility operations. We have examined the many cases cited by defendant and do not discuss them for the reason that they are not relevant to the question presented. We agree with the appellate and the circuit courts that under the statutes defendant was not empowered to assess the surcharge on commercial users for the purpose provided in the ordinances and that the ordinances are therefore invalid. Because we have concluded that defendant was without statutory authority to enact the ordinances, we do not consider the constitutional issues raised by the parties.

We consider next defendant’s contention that plaintiff’s payments of the surcharge were voluntarily made and may not be recovered in this action. It is not disputed that any payment made by plaintiff subsequent to becoming aware of the existence of the surcharge was made “under protest.” The record shows that it was defendant’s policy to terminate service to users in the event of nonpayment of imposed charges and that in many instances such service had in fact been terminated. It is also apparent that there was no statutory procedure for the payment under protest. In Allison Co. v. Village of Dolton, 24 Ill. 2d 233, plaintiff sought to recover money allegedly paid under duress to the defendant village for license and inspection fees under an ordinance which plaintiff alleged was either invalid or inapplicable to him. Relying upon Benzoline Motor Fuel Co. v. Bollinger, 353 Ill. 600, and People ex rel. Carpentier v. Arthur Morgan Trucking Co., 16 Ill. 2d 313, the court held that payments made to avoid “disastrous effects to business” were involuntary and that the money thus paid could be recovered. Confronted with the choice of payment of the surcharge or termination of service, plaintiff, in making the payment, acted with prudence and is not barred from recovery of the sums paid.

Defendant contends next that “plaintiff and all members of his class are guilty of laches” and are precluded from recovering moneys paid under the ordinances. It points out that the ordinances in question were originally proposed and debated in 1959 and enacted in 1960. It argues that plaintiff had “constructive knowledge” of the existence of the ordinance, that the applicable test is not what plaintiff knew, but what he might have known by the use of means of information within his reach and in the exercise of the vigilance required of him by law. In Slatin's Properties, Inc. v. Hassler, 53 Ill. 2d 325, the court, relying upon Pyle v. Ferrell, 12 Ill. 2d 547, set forth the requirements for the application of laches in bar of an action. (53 Ill. 2d 325, 330.) The record shows that plaintiff filed this action within 30 days of learning of the surcharge, and there is no showing that defendant is prejudiced by the fact that the ordinance was not attacked until 13 years after its enactment. We hold that laches does not bar plaintiff’s action. ■

We consider next defendant’s contention that the appellate court erred in its reversal of the circuit court and in holding that this suit could be maintained as a class action. It argues that the question of voluntary payment is a “dominant and pervasive issue in the present case which requires individual determinations that cannot be decided in a class action” and that the appellate court, in effect, has made a classwide determination of that issue. We do not agree. We need not review here the comprehensive discussion contained in the opinion of the appellate court on this question. Public Act 80—809, effective October 1, 1977, provides:

“(a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” (Ill. Rev. Stat. 1977, ch. 110, par. 57.2.)

As we said in Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 337-38, a “community of interest” of both the subject matter and the relief sought is not requisite to a class action. The question of law common to the class and which predominates “over any questions affecting only individual members” is the question of the validity of the ordinance. The fact that some members of the class may not seek relief because of some factor peculiar to them does not serve to bar the class action. (Rosen v. Village of Downers Grove, 19 Ill. 2d 448, 456.) Defendant argues that plaintiff has a conflict of interest with other members of the class because certain of its members have chosen to permit defendant to retain the moneys paid under the surcharge. Obviously this is irrelevant to the question whether the ordinance was valid, and the success of the action to date leaves little question that plaintiff “will fairly and adequately protect the interest of the class.” In Steinberg we said:

“In those cases where certain questions peculiar to some but not all members of the class arise, various procedures may be employed.
* * *
An Illinois court determining that an essential element of the proof is common to only certain members of the class could order separate trials on that particular issue. (Ill. Rev. Stat. 1975, ch. 110, par. 23.) Or the class could be broken into various subclasses, as the Federal decisions point out. The class action, however, is not to be dismissed because of these differences in elements of proof between members of the class.” Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 341-42.

Amicus curiae, the Geneva Chamber of Commerce, argues that the decision of the appellate court on the question of plaintiff’s representation of a purported class should be reversed and plaintiff’s appeal on that issue dismissed for lack of an appealable interest. It argues that because plaintiff has obtained a judgment for such sums as he is entitled to recover from defendant, he no longer has standing to represent the class. This contention was not made by defendant at any time and appears to have been raised for the first time in this court and will not be further considered. We hold that the appellate court did not err in its reversal of the circuit court on this question.

For the reasons set forth the judgment of the appellate court is affirmed.

Judgment affirmed.

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

MR. JUSTICE UNDERWOOD,

dissenting:

I agree with the majority that this case “presents the very narrow question whether, within the ambit of the relevant statutes, defendant was authorized to levy a surcharge on commercial users of the electric services provided by its utility and use those funds for the construction and maintenance of parking lots.” (71 Ill. 2d at 32.) Yet the court states only its conclusion regarding this question; it neither adopts the reasoning of the appellate court invalidating the ordinance nor explains its own rationale. An ordinance is presumed valid and reasonable, and the attacking party has the burden of showing otherwise. (City of Chicago Heights v. Western Union Telegraph Co. (1950), 406 Ill. 428, 432.) The city of Geneva and other Illinois municipalities deserve a more detailed explanation than the majority gives of the shortcomings of this ordinance.

While I am not nearly so certain as my colleagues appear to be that the city could not do as it did here, I am entirely certain that recovery ought not to be permitted for the 13 years during which plaintiff sat by and permitted the city to collect and expend this money. The ordinance imposing this surcharge was publicly debated, passed and published in the local newspapers. Plaintiffs are charged with knowledge of that which may be obtained from public records, and they have constructive notice of the ordinances of their city. (Haas v. Commissioners of Lincoln Park (1930), 339 Ill. 491, 498; see DuMond v. City of Mattoon (1965), 60 Ill. App. 2d 83, 87.) This court said in Pyle v. Ferrell:

“These matters were all of public record, and although appellant claims not to have had notice of any of these matters adverse to his ownership, such pub he records served as constructive notice to him where, as here, the adverse claimant was not guilty of any affirmative act of deception to prevent suspicion and inquiry. (See: Potts v. Alexander, 118 Fed. 885; Briggs v. Buzzell, 164 Minn. 116, 204 N.W. 548.) The test is not what the appellant knows, but what he might have known by the use of the means of information within his reach with the vigilance the law requires of him.” (Emphasis added.) (12 Ill. 2d 547, 554.)

There is no evidence that the city affirmatively deceived plaintiff Ross or any other customer. City personnel were always available during the entire period to explain or itemize an electric bill and did in fact explain the surcharge to many commercial customers. Copies of the commercial rate were readily available. To say as does the majority that “there is no showing that defendant is prejudiced by the fact that the ordinance was not attacked until 13 years after its enactment” (71 Ill. 2d at 34) is simply evading contact with reality. Of course the city is prejudiced. How could it not be? For 13 years without a challenge it collected and expended this revenue to provide adequate parking facilities from which plaintiff Ross and the entire community have benefitted. Had timely complaint been made and upheld, any defects in the ordinance could have been supplied or alternative sources of revenue explored. Thirteen years would not have been irrevocably lost.

I cannot join the opinion of the court.


text:
    (No. 49448.
    CHET'S VENDING SERVICE, INC., Appellant, v. THE DEPARTMENT OF REVENUE, Appellee.

      Opinion filed Jan. 20, 1978.

    Rehearing denied March 30, 1978.

      UNDERWOOD, J., dissenting.
    Walsh & Fielding, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel and Karen Konieczny, Assistant Attorneys General, of Chicago), for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Following a field audit of the books and records of plaintiff, Chet’s Vending Service, Inc., defendant, the Department of Revenue, issued a notice of tax liability under both the Illinois Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 440 et seq.) and the Illinois Use Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 439.1 et seq.) for the period July 1, 1971, through October 31, 1974. Plaintiff filed a timely protest to the notice, and the matter was set for hearing before one of defendant’s hearing referees. Plaintiff tendered payment of the use tax deficiency, and following the completion of the hearing defendant issued a “final assessment” of liability for retailers’ occupation tax. Plaintiff sought administrative review in the circuit court of Cook County (see Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.), and the circuit court affirmed defendant’s determination of liability and entered judgment in favor of defendant and against plaintiff in the amount of $5,827.11 and costs. Plaintiff appealed, and we allowed its motion for direct appeal to this court. 58 Ill. 2d R. 302(b).

The facts are not in dispute. Plaintiff is engaged in the business of catering food and beverages to employees at industrial locations. It installs and maintains automatic vending machines for the sale of food and beverages, and also sells manually, “over cafeteria counters,” beverages and food which it either prepares on the premises or brings to the site from a central food-preparation location.

The evidence shows that plaintiff has three types of contracts with the industries which it serves. Under the first type, plaintiff, without charge to the company-employer, supplies food and beverage service to its employees. As to these locations plaintiff pays the retailers’ occupation tax on all moneys received from the sales to employees, and it retains any profits or bears any losses. There is no issue here concerning this type of operation. Under the second type of contract plaintiff pays the retailers’ occupation tax on all moneys received from the sales to employees and retains any profit or bears any loss from its operation; but, in addition to the receipts from sales, it receives a “fixed fee” or monthly subsidy payment from the employer. Under the third type of contract, plaintiff, each month, renders the employer a statement of its sales and costs at the employer’s plant, and if the receipts from sales to employees do not cover plaintiff’s costs, the employer “makes up the difference.” In computing its retailers’ occupation tax plaintiff has not included in its gross receipts either the “fixed fee” or “guarantee” payments received from the employers. The question presented is whether the “fixed fee” monthly subsidy or the “guarantee” paid plaintiff by the employer is subject to the retailers’ occupation tax.

Section 2 of the Retailers’ Occupation Tax Act imposes a tax upon persons engaged in the business of selling tangible personal property at retail, measured by “the gross receipts from such sales of tangible personal property.” (Ill. Rev. Stat. 1971, ch. 120, par. 441.) In section 1 of the Act “gross receipts” are defined as “the total selling price or the amount of such sales” (Ill. Rev. Stat. 1971, ch. 120, par. 440), which in turn is defined as “the consideration for a sale valued in money whether received in money or otherwise” (Ill. Rev. Stat. 1971, ch. 120, par. 440). “Purchaser” is defined as one who through a sale at retail acquires the ownership of or title to tangible personal property for a valuable consideration. Ill. Rev. Stat. 1971, ch. 120, par. 440.

Plaintiff contends that the employees of the industrial locations where it provides its services are the “purchasers” of the food manually sold, that the “selling price” is the consideration received from such sales, and that the “gross receipts” are its total receipts from sales made through both its vending devices and its manual operations. It argues that the additional revenues which it received from the employer were not paid by the “purchaser” and did not constitute any portion of either the “selling price” or the “gross receipts.” It contends too that the sums paid by the employer do not relate to any particular items sold by plaintiff to the employees, and that under the provisions of the Retailers’ Occupation Tax Act, the employer is not the purchaser. It points out that when it pays an industrial owner a commission from the sale of products from its automatic vending machines located at the industrial site, defendant does not allow it to deduct such commission from its gross receipts (see Rule 26, Illinois Retailers’ Occupation Tax Rules) and that when the industrial owner pays a subsidy to the taxpayer, the converse should apply. It argues that where, as here, the subsidy is unrelated to the sale of any particular items and the employer is not reimbursed by the purchaser of such items, the payments received should not be included in gross receipts.

Defendant contends that the fee or subsidy or the guarantee payment paid plaintiff by the employer is an inseparable part of the consideration for the sale and transfer of tangible personal property and is includable in plaintiff’s gross receipts subject to the retailers’ occupation tax. It argues that the subsidy-payment arrangement represents a “two-party split” of the consideration for the transfer of tangible personal property between the employer and employee and that the payments received from both must be combined in computing the retailers’ occupation tax.

The sales of food and beverages involved here effected a transfer of ownership or title to the employee-purchaser “for use or consumption,” and the employee who bought the item was the “purchaser.” Each sale was a separate transaction, and as defined in the statute (ch. 120, par. 440) the “selling price” was “the consideration *** valued in money whether received in money or otherwise, including cash, credits, property other than tangible personal property and services ***.” The evidence shows no basis for relating any portion of the fixed fee or guarantee payment to any individual sale as part of the “selling price.” To construe the terms “selling price” and “gross receipts” in the manner for which defendant contends would require us to hold that the manual or cafeteria-type sales at each industrial location during a calendar month were one sale to both the employer and the employees, the “selling price” of which was the aggregate of the sums received from the employees and the monthly payment received from the employer. “Taxing statutes are to be strictly construed and their language is not to be extended or enlarged by implication beyond its clear import, but in cases of doubt such laws are construed most strongly against the government and in favor of the taxpayer.” (Ingersoll Milling Machine Co. v. Department of Revenue, 405 Ill. 367, 373.) We have considered the arguments of the parties concerning the nature of the payments and conclude that whether the payments were made for the purpose of enabling plaintiff to reduce the cost of the food and beverages which it sells to the employees or to guarantee it a profit from its operation is wholly irrelevant. Under the clearly defined terms employed in the statute, the payments were not includable in plaintiff’s “gross receipts.”

Although we are not aware of any decision on this question by the highest court of another jurisdiction, we note that the holdings in Szabo Food Service, Inc. v. State Board of Equalization, 46 Cal. App. 3d 268, 119 Cal. Rptr. 911, H-W Corp. v. Department of Treasury, Mich. Bd. of Tax Appeals, aff'd, H-W Corp. v. Department of Treasury, 15 Mich. App. 554, 166 N.W.2d 822, and Mobil Research & Development Corp. v. Bob Bullock, Texas State Comptroller, Travis County, Texas (Case No. 239962), involving statutory provisions similar to those contained in the Retailers’ Occupation Tax Act, are consistent with the conclusion reached.

For the reasons set forth, the judgment of the circuit court is reversed.

Judgment reversed.

MR. JUSTICE UNDERWOOD,

dissenting:

The payments made by the company-employer to the plaintiff seem to me to fall within the plain, unambiguous language of the Retailers’ Occupation Tax Act. Section 2 imposes the tax upon “persons engaged in the business of selling tangible personal property at retail at *** [a percentage] of the gross receipts from such sales ***.” (Ill. Rev. Stat. 1971, ch. 120, par. 441.) Section 1 defines gross receipts as “the total selling price or the amount of such sales,” and total selling price or the amount of sale is therein defined as “the consideration for a sale valued in money.” Ill. Rev. Stat. 1971, ch. 120, par. 440.

In this case the only question is whether subsidies and guarantees paid by the employer to the plaintiff are includible in the gross receipts measuring the tax. It is not disputed that without these subsidies ($360 per month in the case of Magnaflux) and guarantees plaintiff would not have provided the food and beverages. The conclusion that they are part of “the consideration for a sale” and therefore a part of “the gross receipts from such sales of personal property” seems to me inescapable.

My colleagues deem important their observation that the “evidence shows no basis for relating any portion of the fixed fee or guarantee payment to any individual sale as part of the ‘selling price.’ ” (71 Ill. 2d at 42.) This is irrelevant and constitutes the basic error in the majority’s rationale, for there is nothing in the Revenue Code which requires the taxing authorities to relate portions of consideration received to the individual items of property transferred or to individual transactions in which tangible property is transferred. Rather, the tax is an occupation tax upon those engaged in selling tangible personal property at retail, and it is measured by the gross receipts from those sales. If one were to pay a retailer $10 in order to induce the retailer to sell him two items, is it not apparent that the $10 is part of the consideration for the transfer, even though there is no definite basis for allocating the consideration to the sale of each item? One may have intended one dollar or five dollars as the inducement for one of the items, but the Department of Revenue need not prove the allocation. If a father slips the storekeeper a payment so the storekeeper will transfer presents for their mother to the children in exchange for the pennies they saved, can it be contended that the payment is not part of the retailer’s gross receipts because there is no basis for relating the payment to each individual sale?

The court’s opinion permits an employer to enter into an agreement with a caterer whereby the caterer would sell employees food and drink at a very low price provided the employer pays a substantial subsidy, thus escaping the retailers’ occupation tax on most of the consideration for the sale. Any third party with an interest in having goods transferred to others could use this device as a means of eliminating or substantially reducing the tax. Clearly, neither the intent nor the language of the Retailers’ Occupation Tax Act permits this result.

The lower court cases from other States cited by the court do not compel this holding. In Szabo Food Service, Inc. v. State Board of Equalization (1975), 46 Cal. App. 3d 268, 119 Cal. Rptr. 911, the food-service company entered into a “management operating agreement” (46 Cal. App. 3d 268, 270, 119 Cal. Rptr. 911, 912) with each employer whereby each employer controlled revenue and expenses and took any profit or loss from the operation while the food-service company simply received its expenses plus a “management fee” (46 Cal. App. 3d 268, 270, 119 Cal. Rptr. 911, 912). Similarly, in H-W Corp. v. Department of Treasury, Mich. Bd. of Tax Appeals (Docket No. 700), aff'd, H-W Corp. v. Department of Treasury, 15 Mich. App. 554, 166 N.W.2d 822, the opinion of the Michigan Board of Tax Appeals shows that the employer enjoyed all profits and suffered all losses from the operation and that the food-service company merely received a management fee. The Texas district court case, Mobil Research & Development Corp. v. Bob Bullock, Texas State Comptroller, Travis County, Texas (Case No. 239962), also involved mere reimbursement of expenses plus, management fees.

In our case plaintiff is not receiving a “management fee” in return for running the employer’s cafeteria. Plaintiff is itself providing the food and service for a price, a part of which is paid by the employer.

We recently held that application of the Retailers’ Occupation Tax Act was not determined by narrowly viewing the transaction through the eyes of the transferee, emphasizing that the crucial element in this taxation scheme is the gross receipts of the retailer. (Keystone Chevrolet Co. v. Kirk (1978), 69 Ill. 2d 483.) There, a plaintiff purchased a new automobile for $4,800 on which a 5% retailers’ occupation tax in the amount of $240 was paid. Subsequently, the manufacturer paid the purchaser a $500 rebate. The plaintiff there contended that the rebated amount should not be subject to the retailers’ tax, notwithstanding the fact that the retailer received the full $4,800 price, because the net cost to the buyer was actually only $4,300. We rejected this contention because the statutory scheme imposes a tax upon the occupation of selling goods at retail, the tax to be measured by the gross receipts of the seller; the position of the purchaser or transferee was not a matter for consideration under the Act. Here, the court is considering only the “sale” which occurred at the point of transfer of the food. The majority incorrectly views the transaction through the eyes of the employee, and refuses to consider the company-employer as a purchaser because it cannot relate the subsidy and guarantee payments to these individual transactions between plaintiff and employee. The statute and this court’s decisions make it clear that the tax is imposed upon the retailer and the amount of tax is determined by viewing the retailers’ gross receipts from the retail sales he has made. The details of the individual transfers and the method and source from which those gross receipts come should not ordinarily interfere with the determination of tax liability.

I would affirm the judgment of the Cook County circuit court.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 49493.
    MATTHEW PATRICK GERRITY, Appellant, v. ROBERT BEATTY et al., Appellees.

      Opinion filed January 20, 1978.

    Modified on denial of rehearing March 30, 1978.

      Eugene I. Pavalon, of Asher, Greenfield, Goodstein, Pavalon & Segall, Ltd., of Chicago (Irving Stenn, Jr., of counsel), for appellant.
    James H. Canel, of Chicago, for appellee.
    Jane Carfagno Clark, of Springfield, tor amicus curiae Illinois Education Association.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On October 20, 1973, the 15-year-old plaintiff, Matthew Patrick Gerrity, suffered severe injuries while making a tackle in a junior varsity football game conducted by Downers Grove South Community High School where he was enrolled as a sophomore. He thereafter filed a multicount personal injury action seeking damages from the manufacturer of the football helmet he was wearing, his attending physician, the hospital in which he received treatment, the city of Downers Grove, whose fire department personnel transported him to the hospital, and the defendant school district. This appeal is concerned solely with count VI of the complaint, which alleged ordinary negligence on the part of the defendant school district in furnishing plaintiff with an ill-fitting and inadequate football helmet. The trial court granted the district’s motion to strike count VI on the ground that under section 34—84a of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 34—84a), as construed by this court in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, and as applied to the circumstances set forth in the complaint, the plaintiff could not recover damages unless he alleged and proved willful and wanton conduct on the part of school personnel. We allowed plaintiff’s 302(b) motion to transfer to this court his appeal under Rule 304(a) (58 Ill. 2d Rules 302(b), 304(a)), the trial court having found there to be no just reason for delaying enforcement and appeal.

As a consequence of the public policy considerations favoring the promotion of family harmony and the prevention of intrafamily litigation and strife, it has been recognized as a general rule in this State that children may not maintain actions against their parents for mere negligence but may do so only in the case of willful and wanton misconduct. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165; Mroczynski v. McGrath (1966), 34 Ill. 2d 451; Nudd v. Matsoukas (1956), 7 Ill. 2d 608.) In 1965, the General Assembly enacted sections 24—24 and 34—84a of the School Code, which had the effect of extending this limited form of parental immunity to teachers and other certificated educational employees. The former section applies to cities with populations of less than. 500,000 while the latter applies to cities with populations greater than 500,000. The pertinent parts of each section are identical and provide as follows:

“Teachers and other certificated educational employees shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.
Nothing in this Section affects the power of the board to establish rules with respect to discipline.” Ill. Rev. Stat. 1973, ch. 122, pars. 24—24, 34—84a.

In Kobylanski, this court considered two consolidated cases in which students who had suffered injuries while participating in gym class activities sought to recover damages from the defendant school districts on the grounds that the injuries resulted from ordinary negligence on the part of the gym teacher in failing to provide proper instruction and supervision during gym class. One of the questions was whether sections 24—24 and 34—84a of the School Code should be construed to confer the status of parent or guardian upon teachers solely in disciplinary situations or whether such status also applied to the facts in those cases, which admittedly arose from nondisciplinary, supervisional activities. We concluded that by its terms the statute intended to confer in loco parentis status in nondisciplinary as well as disciplinary situations and that the plaintiff students must therefore prove willful and wanton misconduct on the part of the physical education teacher to recover for the injury suffered in gym class.

In this case count VI of plaintiff’s complaint alleged that the defendant school district carelessly and negligently:

“(a) Permitted and allowed the plaintiff to wear an ill fitting and inadequate football helmet;
(b) Refused to furnish adequate and proper football equipment upon the plaintiffs request;
(c) Furnished and provided the plaintiff with an ill fitting and inadequate football helmet when it knew or in the exercise of ordinary care should have known said helmet was liable and likely to cause plaintiff injury.”

In support of its decision allowing the district’s motion to strike count VI, the trial court found that the Kobylanski decision “does not distinguish between discipline, supervision and furnishing of equipment, but extends to any and all conduct of the schools including the furnishing of equipment for athletic teams.” For the reasons hereafter stated, we are of the opinion that the factual allegations of count VI do not bring this case within the intended scope of sections 24—24 and 34—84a of the School Code.

The statutory provisions in question reflect a legislative determination that the orderly conduct of the schools and the maintenance of a sound learning atmosphere require that there be a personal relationship between teacher and student in which the teacher has disciplinary and supervisory authority similar to that which exists between parent and child. It is evident that this relationship would be seriously jeopardized if teachers and school districts were amenable to ordinary negligence actions for accidents occurring in the course of the exercise of such authority. It is significant to note, however, that our decision in Kobylanski, and the appellate court decisions referred to therein which held teachers and school districts immune from suits for ordinary negligence, were each concerned with a direct, teacher-student relationship involving the exercise of a teacher’s personal supervision and control over the conduct or physical movement of the student. As previously related, Kobylanski involved the alleged failure to provide proper supervision and instruction over physical activities of students in gym class. In Merrill v. Catholic Bishop (1972), 8 Ill. App. 3d 910, it was alleged that an art teacher had not properly supervised a student while he was cutting lengths of wire to be used for making sculptures. In Mancha v. Field Museum of Natural History (1972), 5 Ill. App. 3d 699, a student touring a museum on a school field trip was assaulted by other children, and it was alleged that the teachers in charge of the group had failed to maintain discipline and exercise proper supervision over the movement of the children. Fustin v. Board of Education (1968), 101 Ill. App. 2d 113, was concerned with the alleged negligence of school personnel who failed to control, manage and supervise a school basketball game in which a student was struck and injured by a player on an opposing team. Likewise, in Woodman v. Litchfield Community School District No. 12 (1968), 102 Ill. App. 2d 330, it was alleged that the teacher had failed to provide adequate supervision of the movement of children in the classroom when a student was kicked in the head by a fellow student while picking up papers from the floor at the request of the teacher.

As distinguished from the foregoing cases, count VI in the case at bar did not allege negligence arising out of the teacher-student relationship in matters relating to the teacher’s personal supervision and control of the conduct or physical movement of a student, but instead alleged negligence in connection with what we consider to be the separate function of furnishing equipment which was alleged to be inadequate, ill fitting and defective and which was known, or which in the exercise of ordinary care should have been known, to be liable to cause injury to the plaintiff. The public policy considerations in authorizing, and indeed encouraging, teachers to have broad discretion and latitude in the former situation quite clearly do not apply with as much force to the latter. On the contrary, public policy considerations argue rather strongly against any interpretation which would relax a school district’s obligation to insure that equipment provided for students in connection with activities of this type is fit for the purpose. To hold school districts to the duty of ordinary care in such matters would not be unduly burdensome, nor does it appear to us to be inconsistent with the intended purposes of sections 24—24 and 34—84a of the School Code.

We therefore conclude that Kobylanski is not controlling here and that the factual allegations of count VI fall outside of the scope of section 34—84a of the School Code. Accordingly, the judgment of the trial court dismissing count VI of plaintiff’s complaint is reversed, and the cause is remanded to that court with directions to reinstate that count.

Reversed and remanded, with directions.


author: MR. JUSTICE DOOLEY MR. JUSTICE CLARK,

text:
    (No. 49114.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RENEE HENDERSON, Appellant.

      Opinion filed Jan. 27, 1978.

    Rehearing denied March 30, 1978.

      CLARK and GOLDENHERSH, JJ., dissenting.
    Michael J. Rosborough, Deputy Defender, of Mt. Vernon, and Richard J. Wilson, Deputy Defender, of Springfield, both of the Office of State Appellate Defender (Ann L. Carr and Richard E. Cunningham, Assistant Defenders, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and J. E. Dull, State’s Attorney, of Jefferson County (Donald B. Mackay and Anne Taylor, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE DOOLEY

delivered the opinion of the court:

On April 2, 1975, defendant presented to a pharmacist a prescription for 30 tablets of preludin, a form of

phenmetrazine, a controlled substance under the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 5614, par. 1208(b)). Upon the arrival of the police, defendant fled without obtaining the drug. Defendant knew the prescription bore a false signature.

On April 3, 1975, a complaint charging her with forgery (Ill. Rev. Stat. 1975, ch. 38, par. 17—3) was filed in the circuit court of Jefferson County. She waived indictment, right to counsel, and jury trial. She pleaded guilty pursuant to a plea bargain agreement, and was sentenced to a term of one to three years.

In the appellate court the State confessed error on defendant’s waiver of counsel and waiver of indictment. However, the appellate court held defendant could be prosecuted under the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 1—1 et seq.), and reversed and remanded the cause so that defendant could plead anew. (42 Ill. App. 3d 758.) We allowed her petition for leave to appeal under Rule 315 (58 Ill. 2d R. 315).

The question for decision is whether defendant can be charged with forgery, a Class 3 felony under the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 17-3(d)), or whether the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 5614, par. 1101 et seq.) is the exclusive basis for criminal prosecution for the delivery of a false prescription. Under this statute such an offense is a misdemeanor (Ill. Rev. Stat. 1975, ch. 56½, par. 1406(b)).

Defendant’s contention is that the Illinois Controlled Substances Act is the only statute under which she can be prosecuted.

Since the respective statutes are of such importance, we set them forth. Section 17—3 of the Criminal Code of 1961 provides:

“(a) A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not have such authority; or
(2) Issues or delivers such document knowing it to have been thus made or altered; or
(3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered.
(b) An intent to defraud means an intention to cause another to assume, create, transfer, alter or terminate any right, obligation or power with reference to any person or property.
(c) A document apparently capable of defrauding another includes, but is not limited to, one by which any right, obligation or power with reference to any person or property may be created, transferred, altered or terminated.
(d) Sentence.
Forgery is a Class 3 felony.” Ill. Rev. Stat. 1975, ch. 38, par. 17 — 3.

Section 406(b)(6) of the Illinois Controlled Substances Act provides:

“(b) It is unlawful for any person knowingly:
* * *
(6) to possess without authorization, official blank prescription forms or counterfeit prescription forms; ***.” Ill. Rev. Stat. 1975, ch. 56½, par. 1406(b)(6).

Defendant does not urge that her conduct does not come within the broad terms of the crime of forgery as defined by the Criminal Code of 1961. Examination of subparagraphs (b) and (c) of section 17-3 makes this obvious.

Under People v. Gordon (1976), 64 Ill. 2d 166, and People v. Brooks (1976), 65 Ill. 2d 343, when a defendant’s act is in violation of more than one statute, and each statute requires different proof for conviction or provides for different defenses, the State has the discretion to determine under which statute, including that providing for a greater sentence, the defendant will be prosecuted. This assumes, of course, that the two statutes are not the same.

In accord with these decisions, we hold that the Illinois Controlled Substances Act does not prevent prosecution under the Criminal Code of 1961 for the crime of forgery even though the Code may provide for a greater sentence.

Defendant urges that because she did not obtain a pecuniary advantage and did not defraud the pharmacist or doctor, she could not be guilty of forgery. This argument has been frequently urged in the past, but never with success. “The gist of the offense of forgery is the intent to defraud involved in the making of a forged instrument or knowingly uttering the same.” (People v. Crouch (1963), 29 Ill. 2d 485, 488.) The words “uttering” or “to utter” have a clear definition in law; they mean substantially “to offer” (People v. Katz (1934), 356 Ill. 440, 445). It is immaterial to the crime of forgery whether anyone was in fact defrauded. People v. Meyer (1919), 289 Ill. 184, 186; People v. Church (1937), 366 Ill. 149, 151.

“Forgery *** does not require that anyone be actually defrauded of his money or property. One who has never had a chance to pass his forged document, or whose forgery is spotted when he tries to pass it, is nevertheless guilty of forgery.” W. LaFave & A. Scott, Criminal Law sec. 90, at 671-72 (1972).

For the reasons herein expressed, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

dissenting:

I believe the Illinois Controlled Substances Act precludes prosecution of the defendant here under the Criminal Code of 1961 for the crime of forgery.

Different elements are, of course, present in the two statutes at issue. Section 17—3 of the Criminal Code of 1961 requires a specific “intent to defraud,” while section 406(b)(6) of the Illinois Controlled Substances Act requires knowledge. If this were the extent of the problem before us, we would readily agree that People v. Gordon (1976), 64 Ill. 2d 166, and People v. Brooks (1976), 65 Ill. 2d 343, were controlling, and that the State could charge defendant with the felony of forgery rather than the misdemeanor of possession of a false prescription. See also People v. Barlow (1974), 58 Ill. 2d 41, 44 (where this court held that “a defendant is not denied equal protection of the laws if he is prosecuted under the statute which provides the more severe penalty”).

However, the defendant’s conduct did not involve two different violations, one of which was more severe and could be the basis chosen by the State to prosecute. Her conduct lacked both the “intent to defraud” and possession of a “document apparently capable of defrauding another” (Ill. Rev. Stat. 1975, ch. 38, par. 17—3). In other words, one of the required elements of forgery was missing.

Dr. Johnson has defined “to defraud” as “to rob or deprive by a wile or trick; to cheat; to cozen ***.” (1 S. Johnson, A Dictionary of the English Language (1799).) That definition has not changed much, although the law has taken, perhaps, a more precise notion of forgery and defrauding. Forgery is the “false taking or material altering, with intent to defraud, of any writing which, if genuine might apparently be of legal efficacy ***. [Citations.] A fraudulent making and alteration of writing to prejudice of another man’s right ***.” (Black’s Law Dictionary 779 (4th ed. 1951).) To defraud is to “practice fraud, to cheat or trick. [Citations.] To deprive a person of property or any interest, estate, or right by fraud, deceit, or artifice.” (Emphasis added.) (Black’s Law Dictionary 551.) The common law is quite similar: a person must be harmed or prejudiced. (E.g., People v. Brown (1947), 397 Ill. 92, 97, and People v. Mau (1941), 377 Ill. 199, 202-06.) But the most telling definition is that in the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 17—3), and it merits repeating:

“(b) An intent to defraud means an intention to cause another to assume, create, transfer, alter or terminate any right, obligation or power with reference to any person or property.
(c) A document apparently capable of defrauding another includes, but is not limited to, one by which any right, obligation or power with reference to any person or property may be created, transferred, altered or terminated.”

In essence then, forgery is a crime in which a victim has been harmed: property or rights in property have been taken fraudulently; or money or pecuniary advantage wrongly gained from the victim.

The majority’s reliance on People v. Crouch (1963), 29 Ill. 2d 485, People v. Katz (1934), 356 Ill. 440, People v. Meyer (1919), 289 Ill. 184, and People v. Church (1937), 366 Ill. 149 — and on LaFave — is misplaced. Those cases, including Crouch, involved identifiable victims who would have been harmed had the transactions been completed or the “negotiations” successful. An instrument was fraudulently “uttered” against someone but unsuccessfully or incompletely. In short, those cases address the problem of depriving anyone of value or of gaining an advantage over someone by means of a false instrument-before anyone was actually defrauded or harmed. Had those transactions been completed, identifiable victims would have been harmed.

That is not the case before us. If Henderson had been successful in acquiring the drugs, there would still have been no identifiable victim — other than the defendant herself. The physician, whose name was wrongly used, was not defrauded; the pharmacist, to whom the prescription was given, suffered no loss, since defendant was apparently prepared to pay for the drugs. The crime was against the People. Forgery involves a crime against property; defendant’s actions involved neither a crime against property nor a defrauded person. See State v. McFall (1968), 103 Ariz. 234, 237-38, 439 P.2d 805, 808-09.

There are other indications of the legislature’s intent to treat the use of false prescriptions to procure drugs outside the range of the Criminal Code of 1961, that is, to treat such conduct as a drug problem. The Committee Comments to section 17—3 (Ill. Ann. Stat., ch. 38, par. 17—3 (Smith-Hurd 1970)) note that section 17— is a codification of previous laws proscribing various kinds of forgery (Ill. Rev. Stat. 1959, ch. 38, pars. 151 (currency), 277 (records and other writings), 278 (securities), 279 and 280 (bills and notes), and 401 (public records)). Admittedly, those forms of forgery are not exhaustive; however, possession of a false prescription is not easily accommodated in that group. Furthermore, defendant’s conduct is precisely that which is prohibited in section 406(b)(6) of the Illinois Controlled Substances Act, and described as a misdemeanor, but does not so neatly fit the forbidden conduct of section 17 — 3 of the Criminal Code of 1961. Finally, the legislative intent to treat the possession of false prescriptions separately is indicated in the first section of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 5614, par. 1100):

“It is not the intent of the General Assembly to treat the unlawful user or occasional petty distributor of controlled substances with the ¿ame severity as the large-scale, unlawful purveyors and traffickers of controlled substances. To this end, guidelines have been ■ provided, along with a wide latitude in sentencing discretion, to enable the sentencing court to order penalties in each case which are appropriate for the purposes of this Act.”

The defendant, who has no history of prior convictions, would come within the scope of this intent.

For the foregoing reasons, I would affirm the appellate court but remand with directions consistent with this dissent.

MR. JUSTICE GOLDENHERSH joins in this dissent.


author: MR. JUSTICE RYAN

text:
    (Nos. 49155-56 cons.
    SPRINGFIELD - SANGAMON COUNTY REGIONAL PLAN COMMISSION v. THE FAIR EMPLOYMENT PRACTICES COMMISSION et al.-THE CITY OF SPRINGFIELD, Appellant, v. THE FAIR EMPLOYMENT PRACTICES COMMISSION et al., Appellees.-THE COUNTY OF SANGAMON, Appellant, v. THE FAIR EMPLOYMENT PRACTICES COMMISSION et al., Appellees.

      Opinion filed Jan. 20, 1978.

    Rehearing denied March 30, 1978.

      D. Bradley Blodgett, Corporation Counsel, and W. J. Simhauser, of Springfield, for appellant City of Springfield.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (Wayne Golomb, of counsel), for appellant County of Sangamon.
    William J. Scott, Attorney General, of Springfield (Paul V. Esposito, Assistant Attorney General, and J. Stuart Garbutt, Special Assistant Attorney General, both of Chicago, of counsel), for appellee Fair Employment Practices Commission.
    Robert Weiner, of Springfield, for appellee Elwood Smith.
   MR. JUSTICE RYAN

delivered the opinion of the court:

In April 1973 the plaintiffs, the city of Springfield, the County of Sangamon, and the Springfield - Sangamon County Regional Plan Commission, filed three administrative review actions in the circuit court of Sangamon County, pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.). The actions, which were consolidated in the circuit court, sought to review a decision of the Illinois Fair Employment Practices Commission (FEPC) rendered on March 29, 1973, which had found that the plaintiffs had committed an unfair employment practice by not hiring defendant Elwood Smith because of his race. The Commission had ordered plaintiffs to offer Smith the job and to pay him back wages and the fringe benefits to which he was entitled. The circuit court ruled that the FEPC had lost jurisdiction of the case prior to the time of its decision and set aside the ruling. On appeal, the appellate court held that the FEPC had jurisdiction over the Springfield - Sangamon County Regional Plan Commission and the County of Sangamon and remanded the cause to the circuit court for a decision on the merits as to those two plaintiffs. Subsequently, the appellate court withdrew the original opinion and filed another opinion in which it affirmed the circuit court order as to the Springfield - Sangamon County Regional Plan Commission, but held that the FEPC had jurisdiction over the city of Springfield and County of Sangamon. At the request of the parties on rehearing, the appellate court agreed to consider the case on the merits, and in addition to its jurisdictional finding, sustained the FEPC’s finding of discrimination. (45 Ill. App. 3d 116.) We granted leave to appeal.

On June 12, 1968, defendant Elwood Smith filed a charge of unfair employment practice with the FEPC naming as respondents “City of Springfield Plan Commission, Nelson Howarth, Mayor, Eugene Estes, Chairman, Bradley Taylor, Executive Director.” The charge stemmed from the refusal of the Springfield - Sangamon County Regional Plan Commission to hire Smith as its “Urban Renewal Planner Administrator.” Smith, who is black, and who had interviewed with Taylor after answering an advertisement in the newspaper, charged that he was discriminated against because of his race, in that on May 20, 1968, the plan commission hired a white man for the position of administrator, who Smith alleged was less qualified for the job.

Smith filed an amended charge on September 9, 1968, to change the name of respondents to “Springfield - Sangamon County Regional Plan Commission, Eugene Estes, Chairman, Bradley Taylor, Executive Director, City of Springfield Plan Commission.” The FEPC began investigating the charge of unfair employment practices against the plan commission, and several conciliation conferences were conducted. On December 5, 1968, a stipulation was entered into purporting to extend the 180-day period in which the FEPC could issue a complaint (which began to run on June 12, 1968, the day the charge was properly filed), as provided by section 8 of the Fair Employment Practices Act (Ill. Rev. Stat. 1967, ch. 48, par. 858(c)). The stipulation, which was entered into by both Smith and the Springfield - Sangamon County Regional Plan Commission and approved by the FEPC, was subsequently modified, and a similar agreement was entered into by the same parties. As a result, the 180-day period was purportedly extended to March 31, 1969.

Further conciliation proved unfruitful, and on March 25, 1969, a complaint was filed by the FEPC naming Springfield - Sangamon County Regional Plan Commission as respondent and alleging an unfair employment practice on or about May 20, 1968, as set forth in the charge. On April 30, 1969, the FEPC amended its complaint to include the additional dates of the month of October 1967, January 26, 1969, February 14, 1969, and March 18, 1969.

On August 22, 1969, Smith petitioned the FEPC to amend the complaint to add plaintiffs city of Springfield and County of Sangamon as additional respondents, and the petition was allowed by the Commission on October 7, 1969. However, for reasons that are not entirely clear from the record, the amended complaint was not filed until April 28, 1970. The substance of the amended complaint essentially remained the same, alleging an unfair employment practice as the result of the refusal of the Springfield - Sangamon County Regional Plan Commission to hire Smith because he is black, as set forth in his charge of June 12, 1968. Smith’s charge of unfair employment practices which was attached to the amended complaint was a copy of the amended charge which Smith had filed on September 9, 1968, with the words “County of Sangamon and City of Springfield” interlineated following the words “Springfield - Sangamon County Regional Planning Commission.” The sole charge of unfair employment practice against the city and county in the amended charge, and in the amended complaint, is that which was alleged to have occurred on May 20, 1968. The additional dates of alleged unfair practices which were charged against the Springfield - Sangamon County Regional Plan Commission in the amended complaint filed by the FEPC on April 30, 1969, were not alleged in the amended complaint with which we are here concerned.

We first consider the question of jurisdiction, a point which has been extensively debated throughout the entirety of the proceedings. To determine whether or not the FEPC retained jurisdiction over the matter, we must consider the relevant portions of the Fair Employment Practices Act. The Act, as it was in effect at the time of Smith’s initial charge, provided:

“(a) Whenever within 120 days after the date that an unfair employment practice allegedly has been committed, a charge in writing under oath or affirmation is filed with the Commission by a complainant and in such detail as to substantially apprise any party properly concerned as to the time, place and facts with respect to such alleged unfair employment practice, that any employer *** has committed such unfair employment practice, the Commission shall promptly serve a copy of the charge or summary thereof on the respondent and thereafter shall institute an investigation by its employees to ascertain the facts relating to such alleged unfair employment practice. If it is determined by the Commission, after such investigation, that there is not substantial evidence that the alleged unfair employment practice has been committed, the charge shall be dismissed; otherwise the Commission, or any member thereof, shall endeavor to eliminate the effect thereof and prevent repetition thereof by means of conference and conciliation. ***
(b) ***
(c) Whenever a charge of an unfair employment practice has been properly filed, the Commission, within 180 days thereof, shall either issue and serve a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and the respondent.” Ill. Rev. Stat. 1967, ch. 48, par. 858.

We first consider whether the 180-day time requirement of subsection (c) is a jurisdictional limitation which deprived the FEPC of authority to act after its expiration. We do not agree with the holding of the appellate court that the 180-day period requirement is merely directory in nature. While the period is not jurisdictional in the sense that it cannot be waived, it is our view that the limitation imposed a mandatory time within which a complaint could issue by the FEPC. It is well established that such time periods will be considered directory only where the rights of the parties are not injuriously affected by the failure to act within the time indicated. (Carrigan v. Illinois Liquor Control Com. (1960), 19 Ill. 2d 230.) Certainly, periods of inaction on behalf of the FEPC would tend to hamper the remedial and reconciliatory procedures which underlie the very purpose of the Fair Employment Practices Act, and should the FEPC find against the respondents the financial burden of the administrative order could be substantially increased by virtue of any extended delay. Consequently, the 180-day period prescribed in the statute was intended to ensure expeditious action on behalf of the FEPC, and must be considered mandatory.

Since the time period, then, imposes a mandatory limit within which the agency is required to act, it is comparable to a statute of limitations. This court has previously interpreted similar time periods as having this . effect. (See Pantle v. Industrial Com. (1975), 61 Ill. 2d 365.) Being a statute of limitations, its application is subject to waiver, estoppel, and extension by the parties. (See Molex, Inc. v. Industrial Com. (1975), 62 Ill. 2d 46.) This is the precise effect of the amendatory language, which presently is contained in the section, and allows the period to be extended by agreement of the parties. Ill. Rev. Stat. 1973, ch. 48, par. 858.01(a).

In 1957 Sangamon County passed a resolution, pursuant to statute (Ill. Rev. Stat. 1957, ch. 34, par. 152a), creating the Sangamon County Plan Commission. Also in 1957, the city of Springfield created the Springfield Plan Commission, pursuant to section 53—1 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1957, ch. 24, par. 53—1). The Springfield ordinance provided that the Springfield Plan Commission could meet with the Sangamon County Regional Plan Commission under the auspices of a single chairman. The ordinance empowered the Springfield Plan Commission to appoint an executive director and such other employees as it deemed necessary, with the consent and approval of the mayor. In addition, provision was made for the Springfield Plan Commission to contract for technical services with the Sangamon County Regional Plan Commission and other groups.

In the following years, the city and county plan commissions met jointly as what came to be known as the “Springfield - Sangamon County Regional Plan Commission.” A director was hired and a separate office was set up out of which the plan commission operated. The plan commission was funded by various bodies, including Sangamon County, the city of Springfield, the Federal government, and various other local and State governmental bodies. The commission performed various services for these bodies and the various other agencies that contributed funds for its appropriation.

The appellate court, on the basis of the foregoing evidence, determined that the Springfield - Sangamon County Regional Plan Commission was not an autonomous legal entity, but rather a joint operation of the two plan commissions. Consequently, the appellate court found that the stipulation entered into on behalf of Smith and the Springfield - Sangamon County Regional Plan Commission was binding on both the city and county, and, as employing units who employed the requisite number of employees at the time of the alleged discrimination, found them responsible, on the merits, for the discriminatory hiring practices of the plan commission.

We do not agree with the conclusion of the appellate court. We do not think that the stipulation, which purported to extend the 180-day period for several weeks, can be deemed to allow such a drastic extension of the time period as would allow essentially new parties to be brought into the case more than a year after the extension period had expired, and nearly 22 months after the initial charge had been filed. The purpose underlying the extension of the 180-day period by agreement of the parties is to increase the opportunity for settlement and conciliation and to ensure that rigid time constraints do not hinder the judicious resolution of disputes by the "FEPC. However, that purpose is not promoted here, where throughout the entire period of investigation, conciliation, and attempted settlement, the city and county were not involved in the proceeding and were consequently deprived of the opportunity to benefit from the purpose for which the 180-day period, and extensions to the period, were designed. Throughout the entirety of this period, the focus of the investigation by the FEPC was upon the regional plan commission and not upon the city of Springfield or County of Sangamon. The technical legal affiliation between the regional plan commission and the city and county, or the fact that the city and county had notice of a charge under the Act without becoming parties thereto, does not alter this overriding consideration.

These proceedings have taken too many changes in direction for this court now to gloss over the extreme time gaps by rationalizing that the Springfield - Sangamon County Regional Plan Commission is somehow an arm of both the city and the county so that the time limitation of the statute can be ignored. The statute then in force required that the charge of unfair employment practices be filed with the Commission within 120 days after the alleged violation. The petition to amend the complaint charging the city and county was not filed until August 26, 1969. The charge of unfair employment practices against the city and county was made after that date and alleged that the unfair practices occurred on May 20, 1968, 15 months before the amended complaint was filed. However, to preserve the appearance of statutory compliance, the charge against the city and county was interlineated in the original charge that had been timely filed against the Springfield - Sangamon County Regional Plan Commission. The city and county were added as respondents at that time only because it was apparent that the FEPC had no jurisdiction over the plan commission. The statute then applied only to employers of 50 or more persons. (Ill. Rev. Stat. 1967, ch. 48, par. 852(d).) In order to acquire jurisdiction it was necessary to charge an employer of the requisite number of persons. Therefore, although the focus up until that time had been on the plan commission as the employer, long after all limitations had expired, Smith and the FEPC changed positions and charged that the city and the county were the actual employers.

The statute required the Commission to continue an investigation after a charge had been filed and attempt to eliminate the effect and continuation of the alleged practice by means of conferences and conciliation. No such attempt was made following the filing of the charge against the city and county.

The statute also required that, within 180 days following the filing of the charge, the matter be dismissed or a formal complaint be filed against the respondents. Even assuming the extensions of time entered into on behalf of the regional plan commission were binding on the city and county, the time limitation of the statute was still not complied with. The last extension of time expired on March 31, 1969. The order of the FEPC directing that an amended complaint issue against the city and county was, as noted above, entered on October 7, 1969, and directed that the amended complaint issue against the city and county on October 13, 1969, both dates being more than 180 days after the filing of the original complaint, and even more than 180 days after the expiration of the extended time on March 31, 1969. Even then, although the order directed that the amended complaint issue on October 13, 1969, the amended complaint against the city and county actually was not filed until April 28, 1970.

We point out that Moss-American, Inc. v. Illinois Fair Employment Practices Com. (1974), 22 Ill. App. 3d 248, relied upon by the appellate court, is clearly inapposite. While not passing on the validity of the holding in Moss, we note that in that case a complaint which issued a few days outside the 180-day period was held not to deprive the FEPC of jurisdiction to hear an employment discrimination action. Moss involved the same employer throughout the entire period, and it cannot be said that it was substantially prejudiced by an extension of a few days. Here, not only is there a much longer lapse of time before a complaint issued to include the parties, but, more importantly, according to our reading of the record, neither the city nor the county played any part in the decision not to hire Smith. The executive director of the Springfield - Sangamon County Plan Commission, Bradley Taylor, who was instrumental in the decision to hire the white man instead of Smith, was not on either the county or city payrolls. Employees of the commission were procured by the commission itself, and there is no evidence that Sangamon County, the mayor of Springfield, or the city council, had any influence over whom the commission would hire or that any of these parties were advised of the decision to refuse employment to Smith. Consequently, unlike the situation in Moss, where a short extension of the 180-day period promoted the remedial spirit of the Fair Employment Practices Act, it would be unfair to authorize the inclusion of new parties in the action after such an extended period of time and ultimately hold them responsible for a decision in which they took no active part.

Although an aggrieved individual who has suffered discrimination should not be deprived of the benefits of the Act because of administrative failures, we must also consider that those charged under the Act have the right to a determination of the validity of the charge within the time limitations of the statute. In the event of a finding against a respondent the impact of the administrative order may be severe. In this case, the order was entered March 29, 1973, almost 5 years after the alleged unfair employment practice. This period of time would have been substantially shortened and the amount of money the respondents would have been required to pay Smith as accrued salary and interest would have been considerably less if Smith and the FEPC had complied with the statute. The respondents have the right to expect that the impact of such administrative orders will be minimized by compliance with the statutory time limitations.

For the reasons stated above, the judgment of the appellate court is reversed insofar as it reversed the circuit court. The judgment of the circuit court of Sangamon County is affirmed. It is unnecessary to discuss the merits of the case, and we make no finding in that regard.

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