text:
    (No. 49941.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT A. WARD, Appellant.

      Opinion filed September 19, 1978.

    Richard J. Wilson, Deputy Defender, of the Office of the State Appellate Defender, of Springfield (Edward R. Green and John L. Swartz, Assistant Defenders, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay and Gerri Papushkewych, Assistant Attorneys General, of Springfield), for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

The defendant, Robert Ward, was found guilty of perjury after a jury trial in the circuit court of Macon County. The appellate court affirmed his conviction (50 Ill. App. 3d 885), and we granted his petition for leave to appeal (58 Ill. 2d R. 315). His contention is that his prosecution had been barred under the doctrine of collateral estoppel.

The defendant had been previously tried and found guilty of burglary. The trial court, however, granted his motion for a new trial on the ground that the evidence had been insufficient to support the jury’s verdict. The case was not retried and the charge was later dismissed. The State acknowledges that the effect of the order for a new trial was to bar another prosecution on the burglary charge. (See Ill. Rev. Stat. 1975, ch. 38, par. 3 — 4(a)(1); People v. Woodall (1975), 61 Ill. 2d 60.) The prosecutor then secured an indictment of the defendant for perjury, which was founded upon answers he had given to several questions on direct examination while testifying at his burglary trial.

The burglary prosecution was by way of criminal information and it charged that the defendant had knowingly and without authority entered the garage of the house of the Marshall family in Decatur on October 11, 1975, with the intent to commit a theft. The State at trial introduced evidence to show that two “Mickey Thompson tires with mag wheels” had been stolen. As has been noted above, the trial judge found the State had failed to establish its case. The perjury indictment, following generally the language of the perjury statute, charged that the defendant, on direct examination at his burglary trial, made as answers false statements material to the issue while under oath, which he did not believe to be true:

“Q: And, okay, and then you left his house going around the corner, went south [on] Upton Lane, and went out. Did you stop at any time there by Marshall’s house?
A: No.
Q: Did you see Rhonda Marshall at that time?
A: No.
Q: Did you get out of your car for any purpose other than to go to McMann’s door? [The McMann house was next to the Marshall house.]
A: No.
Q: You didn’t go to Marshall’s house?
A: No.
Q: At any time during that day, or any other day, did you, without authority, enter Marshall’s garage on 3310 Upton Lane and steal a tire or a tire wheel or anything else?
A: No.”

The only issue is the validity of the defendant’s contention that the State was barred from prosecuting him for perjury under the doctrine of collateral estoppel. He acknowledges that there are circumstances under which one may be prosecuted for perjury regardless of his having been acquitted in a trial at which he gave the allegedly perjurious testimony (see People v. Niles (1920), 295 Ill. 525, 530), but he says that the prosecution was barred here by section 3 — 4(b)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 3 — 4(b)(2)). That section provides:

“(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
***
(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution; ***.”

Was the burglary prosecution terminated by a final order which required a determination inconsistent with the facts which would be necessary for the defendant’s conviction here on a charge of perjury?

This court in People v. Borchers (1977), 67 Ill. 2d 578, 582-84, considered the doctrine of collateral estoppel at length:

“This court recently discussed collateral estoppel in People v. Williams (1975), 59 Ill. 2d 557, 560-62:
‘The doctrine of collateral estoppel, which bars relitigation of a decided question, applies to criminal as well as civil proceedings. (People v. Grayson, 58 Ill. 2d 260; People v. Armstrong, 56 Ill. 2d 159; People v. Haran, 27 Ill. 2d 229, 232.) This was noted in Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, where, in the course of describing the doctrine, the court said:
“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. ***”
***

This court noted in People v. Haran, 27 Ill. 2d 229, 231, that the doctrine of collateral estoppel was “well defined” in Hoffman v. Hoffman, 330 Ill. 413. There it was said:

“Where some controUing fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not. *** [I] t must appear by the record of the prior suit that the particular controversy sought to be construed was necessarily tried and determined,— that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter it will be considered as having settled that matter as to all further actions between the parties; ***.” 330 Ill. 413,417.’

There are at times problems presented in seeking to apply the doctrine of collateral estoppel in criminal cases; it is sometimes difficult to determine what facts were actuaUy adjudicated by the former verdict. (See People v. Haran (1963), 27 Ill. 2d 229, 235.) Where the prosecution has had to prove several elements, a verdict of acquittal does not inform as to the basis for the jury’s verdict. But the difficulties of application are not, of course, insuperable. This was illustrated by the Supreme Court in Ashe v. Swenson (1970), 397 U.S. 436, 444, 25 L. Ed. 2d 469, 475-76, 90 S. Ct. 1189, 1194:

‘The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hyper-technical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, 332 U.S. 575, 579. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.’ ”

After examining the record in accordance with what was said in Borchers, we have no doubt that the order allowing a new trial was founded on the trial court’s conviction that the prosecution had not proved burglary beyond a reasonable doubt, and, further, that this conclusion of the trial court required a determination which would be inconsistent with and contradictory to the facts which the prosecution would have to establish to prove the defendant guilty of perjury. In its comments at the time of granting the motion for a new trial the trial court observed that burglary would be committed by entering with the intent to commit a theft. The court proceeded to deprecate the prosecution’s evidence as unconvincing. It stated that the “evidence is shot full of holes. *** The case was a bad case. It was a bad case from the start. The evidence is so unsatisfactory that even a verdict cannot stand in the face of it.” The court stated that its impression was that the jurors probably took a position that they didn’t know what the defendant was guilty of, but that he was guilty of something. The trial court then remarked that guilt must be established beyond a reasonable doubt and that the defendant’s guilt was not established.

The indictment charging perjury must be considered as really an effort to relitigate the burglary charge when examined, as the law requires, with “realism” and not in a hypertechnical sense. The questions and answers set out in the perjury indictment were certainly material to the issue of the defendant’s guilt or innocence of burglary. Set in “a practical frame” (Ashe v. Swenson (1970), 397 U.S. 436, 444, 25 L. Ed. 2d 469, 476, 90 S. Ct. 1189, 1194).this question and answer were critical to the question of guilt or innocence on the burglary charge:

“Q: At any time during that day, or any other day, did you, without authority, enter Marshall’s garage on 3310 Upton Lane and steal a tire or a tire wheel or anything else?
A: No.”

The trial court’s ordering of a new trial on the ground that the evidence was insufficient to convict required a determination that the defendant did not enter the Marshall’s garage intending to steal as the information had charged. This determination would be inconsistent with and contradictory to proof that the defendant testified falsely when he gave the exculpatory answers set out in the indictment for perjury. The doctrine of collateral estoppel was invocable by the defendant to bar the relitigation of what was a decided question, viz, the burglary charge. The State seeks to elude this conclusion, but it is on a ground that we consider unrealistic and hypertechnical. The State speculates that the trial court at the burglary trial may have considered that the defendant did in fact enter the Marshall garage, but formed an intent to commit a theft only after he had entered. Thus, it is contended that the defendant technically was not guilty of burglary but collateral estoppel is not available to him as a bar to prosecution for perjury. This reasoning is forced. As was observed above: “The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ Sealfon v. United States, 332 U.S. 575, 579.” Ashe v. Swenson (1970), 397 U.S. 436, 444, 25 L. Ed. 2d 469, 476, 90 S. Ct. 1189, 1194.

The prosecution of the defendant for perjury was barred under the doctrine of collateral estoppel and under section 3 — 4(b)(2) of the Criminal Code of 1961.

For the reasons given, the judgments of the circuit and appellate courts are reversed.

Judgments reversed.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 50129.
    THE PEOPLE ex rel. JAMES E. BOYLAN, County Treasurer, Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY et al., Appellees.

      Opinion filed September 19, 1978.

      CLARK, J., took no part.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Danny J. Leifel, Assistant State’s Attorney, of counsel), for the People.
    Martin, Craig, Chester & Sonnenchein, of Chicago, and Springfield (Charles G. Chester, Willard Ice, and Rodney W. Osborne, of counsel), for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The county treasurer and ex officio county collector of McLean County filed suit in the circuit court of that county seeking judgment for real property taxes due for the year 1974 and paid under protest by the defendant railroad companies (Ill. Rev. Stat. 1973, ch. 120, pars. 675, 706). The railroads have raised no issue as to the amount of the original assessment of their property. Rather, it is their contention that these assessments were not equalized as required by section 80 of the Revenue Act of 1939, as amended (Ill. Rev. Stat. 1973, ch. 120, par. 561). This failure to properly equalize is alleged to constitute fraudulent discrimination against the railroads in that they are required to pay more than their fair share of taxes in McLean County. Based upon uncontradicted evidence presented by the railroads, the circuit court found the railroads’ property had been assessed at 50% of its actual value contrary to section 80, which requires such property to be assessed at the same percentage of fair cash value as the statewide average percentage applicable to locally assessed property, which for 1974 was 31%. The circuit court found this discrepancy between 31% and 50% to be constructively fraudulent and ordered the collector to refund the excess amount paid by the respective railroads due to the higher percentage assessment. A divided Appellate Court for the Fourth District affirmed (52 Ill. App. 3d 787), and we granted leave to appeal.

The collector presented no evidence on the substantive merits of the controversy and does not now contest the specific findings of the circuit court. Rather, the collector contends the trial court erred in failing to grant his “motion to dismiss for want of jurisdiction.” This motion asserted the circuit court lacked jurisdiction to-entertain this tax-objection proceeding because the Department of Local Government Affairs’ failure to properly equalize the assessment was a final administrative decision judicially reviewable only under the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.). The collector asserts that section 138 of the Revenue Act (Ill. Rev. Stat. 1973, ch. 120, par. 619) makes the Administrative Review Act applicable, and that section 2 of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 265) makes it the exclusive method of review. Thus, the issue before us is whether the tax-objection procedure here employed is a proper remedy in a case involving alleged fraudulent discrimination in the statewide equalization of railroad assessments, or whether this procedure is precluded due to the applicability and exclusivity of the Administrative Review Act. We believe the tax-objection procedure is proper.

It is clear that there are two separate and distinct steps in the taxing process here in question. The first step is the original assessment of the property involved, and the second is the equalization of that assessment. (Ill. Rev. Stat. 1973, ch. 120, par. 561; see People ex rel. Little v. Collins (1944), 386 Ill. 83, 97.) The collector maintains that section 138 of the Revenue Act (111. Rev. Stat. 1973, ch. 120, par. 619), which provides for review of “all final administrative decisions of the Department” under the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.), applies to both steps in this process and is thus the sole method available to obtain judicial review of either departmental action.

This court has recognized that the reference to the Administrative Review Act in section 138 of the Revenue Act applies to the Department’s original assessment function and thus that assessment is exclusively reviewable under the Administrative Review Act. (E.g., People v. Scudder Buick, Inc. (1971), 47 Ill. 2d 388; People ex rel. Chicago & North Western Ry. Co. v. Hulman (1964), 31 Ill. 2d 166.) However, this court has also held that notwithstanding the language of section 138, the Department’s equalization function is properly challenged in tax-objection proceedings where constructive fraud is alleged. (E.g., People ex rel. Cain v. Illinois Central R.R. Co. (1965), 33 Ill. 2d 232; People ex rel. Kohorst v. Gulf, Mobile & Ohio R.R. Co. (1961), 22 Ill. 2d 104; People ex rel. Hillison v. Chicago, Burlington & Quincy R.R. Co. (1961), 22 Ill. 2d 88.) The reasons for this dichotomy, which emanate from the statutory language and context, are clearly stated in the Hillison, Kohorst and Cain opinions and thus need not be repeated here. We add, however, that the original assessment function is a complex procedure involving employment of the Department’s expertise and is therefore susceptible to meaningful judicial review as envisioned in the Administrative Review Act. Conversely, the equalization function is purely a mathematical operation which does not involve discretionary judgment factors (Ill. Rev. Stat. 1973, ch. 120, par. 561); thus there would apparently be less value, aside from consistency and uniformity, in the legislature’s affording judicial review of this function under the Administrative Review Act.

The collector contends, however, that Hillison, Kohorst and Cain are no longer controlling authority due to a subsequent legislative change in section 80 of the Revenue Act (Ill. Rev. Stat. 1973, ch. 120, par. 561). The collector relies upon an amendment approved August 26, 1963, which provides:

“The Department shall determine the equalized assessed value of the property of every railroad company, other than non-carrier real estate, by applying to its determination of the fair cash value of such property of every railroad company an equalization factor, which factor shall be the statewide average ratio of the equalized assessed value of locally assessed property to the full, fair cash value of such locally assessed property.” (1963 Ill. Laws 3422, 3423.)

Our reading of this amendment indicates that its purpose was two-fold: (1) to require equalization of the railroads’ assessment in relation to the locally assessed property as this court held was required in People ex rel. Kohorst v. Gulf, Mobile & Ohio R.R. Co. (1961), 22 Ill. 2d 104, and People ex rel. Hillison v. Chicago, Burlington & Quincy R.R. Co. (1961), 22 Ill. 2d 88; and (2) to change the method of computing the equalization factor from the county-by-county average ratio previously employed to a statewide average ratio. The same two-step taxing process of the Department, assessment followed by equalization, remains intact. The application of a statewide equalization factor merely shifts the basis used in equalizing the railroads’ assessment; it does not change the nature of the Department’s equalization function. Nor is there in that amendment any indication of an intent to modify the Kohorst, Hillison and Cain holdings and make the performance of the equalization function reviewable under the Administrative Review Act. In fact, in affirming the earlier holding of People ex rel. Callahan v. Gulf, Mobile & Ohio R.R. Co. (1956), 8 Ill. 2d 66, that the tax-objection procedure was an appropriate means of review, the Hillison court expressly noted that “[i] f our opinion in that case [Callahan] overlooked or misconceived the legislative intent, no attempt has since been made by the legislature to set us right.” (22 Ill. 2d 88, 95.) Similarly, none of the numerous legislative sessions since those decisions has produced any change in this court’s original interpretation of the administrative review provisions of section 138. “It is axiomatic that where a statute has been judicially construed and the construction has not evoked an amendment, it will be presumed that the legislature has acquiesced in the court’s exposition of the legislative intent.” People v. Hairston (1970), 46 Ill. 2d 348, 353; cert denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658; see also Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 172.

We add that were the collector’s claim correct, the Administrative Review Act would have been the sole and exclusive method of obtaining judicial review of equalization actions since the 1964 tax year. There is no evidence that this has occurred. Further, we note that the railroads express valid concerns regarding the adequacy of notice provisions and the absence of time provisions in the statutory equalization scheme if the Administrative Review Act were to apply. These problems must be legislatively addressed before the Administrative Review Act can become a viable method of obtaining review. These factors lend further support to our conclusion that Hillison, Kohorst and Cain remain as controlling authority and thus the Administrative Review Act is not applicable to the Department’s equalization function.

Our decision today does not affect this court’s opinion in Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350. In that case this court eliminated the judicially created Owens exceptions which had allowed a taxpayer to seek judicial relief under certain circumstances even though administrative review had not been exhausted. This court believed that result “to be a logical extension of the exhaustion doctrine in furtherance of the legislative goals evidenced by the adoption of the Administrative Review Act.” (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 359.) The reasoning of Illinois Bell is to some extent applicable here, and, as is emphasized by the collector, judicial review under the Administrative Review Act of the equalization function would avoid the possibility of repetitious attacks in multiple counties. This case is, however, clearly distinguishable in that precedent established the inapplicability of the Administrative Review Act to the Department’s equalization function in the first place. We are not here asked, as was this court in Illinois Bell, to eliminate recognized equitable exceptions to the applicability of the Administrative Review Act. Instead, we are asked to extend the Act itself, to apply it to an area previously not included. That decision is clearly the responsibility of the General Assembly.

Accordingly, we adhere to the rationale of this court’s Hillison, Kohorst and Cain decisions holding the Department’s equalization function properly reviewable in tax-objection proceedings. The judgment of the circuit court is supported by uncontradicted evidence and was properly affirmed by the appellate court.

Judgment affirmed.

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


text:
    (No. 50337.
    ROBERT D. SKINNER, Appellant, v. THE INDUSTRIAL COMMISSION et al.— (Portable Elevator, Appellee.)

      Opinion filed September 19, 1978.

      James Walker, Ltd., of Bloomington, for appellant.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Ralph Schroeder, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On August 15, 1975, claimant Robert D. Skinner fell while climbing the steps at respondent Portable Elevator’s place of business in Bloomington. His subsequent claim for compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) was denied by the arbitrator. That decision was affirmed on review by the Industrial Commission, and its decision was confirmed by the circuit court of McLean County.

Claimant had been employed as a welder at Portable Elevator for approximately five years prior to and during which he suffered from several health problems. He had experienced a respiratory problem in 1966 diagnosed as asbestosis, and in 1969 was found to have rheumatoid arthritis, which was treated with gold therapy. In 1972 he developed myalgia rheumatica, the pain and fever symptoms of which were relieved by prednisone. Attempts to terminate the prednisone resulted in a recurrence of severe muscle pains and occasional fever for which he was several times hospitalized. In 1973 he was hospitalized for a low back strain, and in early 1975 he had back pain again. About this time he also had cataract eye surgery. Apparently as a result of an excessive amount of cortisone, claimant developed Cushing’s syndrome, which tends to make the body bones more susceptible to fracture. During the year or so before the episode in question here claimant indicated his “back would flare up and hurt.”

On Friday, August 15, 1975, claimant commenced work at 7 a.m. The frame of his glasses broke shortly thereafter and he was taken to the Gailey eye clinic by his wife. After his glasses were repaired, his wife drove him back to his place of employment about 9 a.m. As he was walking up a short flight of wooden steps to the main entrance he fell forward, apparently attempting to break his fall with his right arm while retaining his lunch box and thermos in his left hand. He testified that his right leg, arm and “stomach” struck the steps, he “jumped right back up” and went on in to work. He noticed nothing unusual until his right leg started bothering him about noon. He made no complaint to anyone and continued working the balance of the day. On Saturday his right leg was black and blue below the knee and his back was beginning to get sore. He returned to work on Monday and worked in the paint booth although his back was bothering him. He again worked in the paint booth on Tuesday, but “couldn’t bend hardly at all” and his wife took him to see Dr. John Bertsche on Wednesday.

Dr. Bertsche testified he saw claimant on August 20, at which time his “lumbar muscles were very taut.” He was admitted to Mennonite Hospital on the 21st, and X rays of his back were taken. Dr. Bertsche testified that on those films the superior portion of the first lumbar vertebra “has been shortened and appears to be fractured,” an abnormality not appearing in similar films taken in January 1975. The doctor also testified that the compression fracture “was quite likely related to his fall on the fifteenth.” Claimant was discharged from the Hospital August 30 following treatment with bed rest and analgesics. Dr. Bertsche indicated that in his opinion it would be unwise for claimant to return to his previous employment or any employment involving lifting or stooping for three or four months, during which the vertebra would have time to heal. Dr. Bertsche also noted that the January 1975 X rays had shown fractures of two other vertebrae and that when he saw claimant on August 20 the doctor had thought claimant was simply suffering a recurrence of his former back problem. Claimant had not mentioned his fall to the doctor, and it was not until a nurse had twice asked him if he had not had a fall that claimant recalled falling on the steps. Claimant has received some $1,300 in group insurance benefits.

The arbitrator who heard the case found that claimant had sustained accidental injuries on August 15 arising out of and in the course of his employment but had failed to establish a causal connection between the ill-being now complained of and the August 15 accident. Claimant urges here that the uncontroverted evidence is to the contrary and cites several cases in which this court held Commission findings of no causal connection were contrary to the manifest weight of the evidence. It is significant, however, that in none of those cases had the arbitrator, Commission and trial court all denied compensation as is true here.

In this case had the arbitrator and the Commission, as the finders of fact, awarded compensation, we would have no difficulty in affirming that award. But they did not and we may not substitute our judgment for theirs unless theirs can fairly be said to be contrary to the manifest weight of the evidence. (A.O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 246; Abbey Labor Service, Inc. v. Industrial Com. (1977), 66 Ill. 2d 213, 215-16.) True, the arbitrator found claimant had suffered accidental injuries emanating from the August 15 accident; he also found, however, that there was no causal connection between that accident and the particular injury now complained of. It may well be that the injuries referred to by the arbitrator were those to the right leg of which claimant originally complained, and that the ill-being complained of here was considered to be a recurrence of the back pain which claimant stated “flared up” during the preceding year or so. Considering, too, the fact that claimant experienced no back pain at the time of the fall and did not mention it to the doctor until after new X rays had been taken and a nurse had twice inquired of him regarding falls, we believe the finding of failure to prove a causal connection cannot be said to be contrary to the manifest weight of the evidence. Board of Trustees v. Industrial Com. (1978), 71 Ill. 2d 287, 295; Sahara Coal Co., Inc. v. Industrial Com. (1977), 66 Ill. 2d 353, 355.

The judgment of the circuit court of McLean County is accordingly affirmed.

Judgment affirmed.


text:
    (No. 49914.
    THORNTON, LTD., Appellant, v. EDWARD J. ROSEWELL, County Treasurer, et al., Appellees.

      Opinion filed September 19, 1978.

      Hoffman & Davis and Stanford D. Marks, of Chicago (Sol A. Hoffman, Edward J. Hladis, and John L. Leonard, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Dorothy Kirie Kinnaird, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Thornton, Ltd., an Illinois corporation, brought this action in the circuit court of Cook County seeking a writ of mandamus compelling the defendants, Edward J. Rosewell, Cook County treasurer and ex officio collector, and Stanley T. Kusper, Cook County clerk, to issue a certificate of purchase to real estate on which plaintiff was a successful bidder at a tax sale conducted under the Revenue Act of 1939. (See Ill. Rev. Stat. 1975, ch. 120, pars. 705 through 733.) The circuit court entered summary judgment for defendants, and the appellate court affirmed (51 Ill. App. 3d 373). We granted plaintiff leave to appeal and we now affirm.

The pleadings of the parties indicate no dispute concerning the facts. Certain Cook County real estate was offered for sale pursuant to a judgment order entered on delinquent taxes for the year 1974. Prior to making a bid on the real estate plaintiff inspected the tax judgment, sale, redemption and forfeiture record (the record) prepared by the defendant collector and kept in the office of the defendant county clerk pursuant to law (Ill. Rev. Stat. 1975, ch. 120, par. 713). The record includes a list of delinquent lands and the taxes, interest and costs due on those lands. All charges against the real estate for the year 1972 were stamped “paid.” There was no entry for the year 1973, indicating that the taxes for that year were also paid. Thus, according to the record, only the 1974 taxes were delinquent. Relying on the accuracy of the record, plaintiff submitted a bid that was accepted by the defendants. Plaintiff then paid the collector the amount due under the bid — $15,065.96, representing the taxes, interest and costs owing on the property as advertised by the collector. Under section 247 of the Revenue Act (Ill. Rev. Stat. 1975, ch. 120, par. 728), plaintiff then applied to the county clerk for a statement of taxes, interest and costs which remained unpaid but were not included in the advertisement, expecting the statement to confirm plaintiff’s prior examination of the record. The clerk’s statement indicated that the record was in error and that the collector’s warrant book revealed that over $36,000 in taxes, interest and costs for the years 1972 and 1973 were still unpaid. Because of these outstanding charges the collector refused to issue a receipt to plaintiff showing all taxes paid and the clerk refused to issue plaintiff a certificate of purchase. Plaintiff subsequently brought this action seeking an order directing defendants to so mark the record as to show the 1972 and 1973 taxes paid as to plaintiff or its successors, and a writ of mandamus directing the defendants to issue to him a certificate of purchase on the real estate in question.

In its appeal to this court, plaintiff relies upon Jackson Park Hospital Co. v. Courtney (1936), 364 Ill. 497, which it regards as dispositive. In that case, plaintiff’s predecessor in title purchased certain real estate in 1933. Before making the purchase, plaintiff’s predecessor caused an examination to be made of the tax records, including the collector’s warrants in the offices of the county clerk and county collector. The warrant contained an endorsement, apparently by the county clerk, showing the taxes extended in error and that the property should be exempt. An entry in the tax judgment, sale, redemption and forfeiture record indicated that the taxes for the year 1927 had been paid. In reliance on these entries, plaintiff’s predecessor purchased the property and later conveyed it to the plaintiff. Upon being informed that the taxes for 1927 were, in fact, unpaid, and proceedings to collect thoses taxes were about to be instituted, plaintiff sought an order enjoining the county officials from attempting to enforce collection. This court held that the relief requested by plaintiff should be granted, stating:

“ [The county clerk] has power to cause his records to show a tax paid. He is a public officer and is presumed to perform his duty. His records must always speak the truth. When the clerk stamped as paid the taxes against the property now owned by appellant, in the tax judgment sale, redemption and forfeiture record, they became paid so far as third persons were concerned. He is conclusively presumed to have complied with the law and not to have made the entry unless the taxes were actually paid, and when those records were examined on behalf of appellant’s grantor and showed the taxes against this property paid, he was justified in relying upon the record.” (364 Ill. 497, 501.)

Although admitting that its status as a successful bidder at a tax sale is not precisely the same as that of the fee owner in Jackson Park Hospital, plaintiff contends that this distinction is irrelevant since the broad language in that opinion extends protection to all “third persons,” i.e., those other than the owners of the property at the time of default. In addition, plaintiff contends that the public policy of this State is to encourage, rather than discourage, participation in tax sales in order to increase collection of tax revenue, and that a holding adverse to plaintiff would defeat that policy.

In our opinion, the considerations urged by plaintiff do not warrant the application of the rule pronounced in Jackson Park Hospital in the factual context of this case. Not only is plaintiff’s status significantly different from that of the fee owner in Jackson Park Hospital, but the extent of the record search made prior to bidding appears to be substantially less here than there. In Jackson Park Hospital plaintiff’s predecessor in title had examined the collector’s warrant, which appeared to have been endorsed by the county clerk in a manner compatible with the “paid” notation in the tax judgment, sale, redemption and forfeiture record. Here an examination of the warrant books, which would have revealed the unpaid status of the 1972 and 1973 taxes, was not made. While plaintiff urges in explanation that the large number of parcels of real estate being offered for sale precludes examination of the warrant books, the fact remains that had plaintiff here conducted as extensive an examination as in Jackson Park Hospital he would have discovered the error prior to bidding. This fact becomes relevant only in a balancing of the equities between the taxing units and the tax purchaser in a tax-sale case such as this.

There are, however, more substantial differences between Jackson Park Hospital and the case before us in that the statutory scheme at the time of this sale was substantially different. The two-step tax-sale procedure provided by section 247 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 728) had not been adopted when the transactions in Jackson Park took place. Section 247 provides in part:

“The person purchasing [at a tax sale] any tract or lot, or any part thereof, shall forthwith pay to the collector the amount charged on such tract or lot ***; and in no case shall the sale be closed until payment is made, or the tract or lot again offered for sale. Provided, in counties having a population of 1,000,000 or more, as shown by the last United States census, only the taxes, special assessments, interest and costs as advertised in the sale shall be required to be paid forthwith in cash. The general taxes charged on the land remaining due and unpaid, not included in the advertisement, shall be paid by the purchaser within 10 days after the sale, provided, that upon payment of the fee provided by law to the County Clerk (which fee shall be deemed part of the costs of sale) the purchaser may make written application within such period of 10 days to the county clerk for a statement of all such taxes, interest and costs and an estimate of the cost of redemption of all forfeited general taxes, as are not included in the advertisement and after obtaining such statement and estimate and an order on the county collector to receive the amount of forfeited general taxes, if any, the purchaser shall pay to the county collector all such remaining taxes, interest and costs, and the amount necessary to redeem the forfeited general taxes, who shall issue the purchaser a receipt therefor. *** If a purchaser fails to complete his purchase as herein provided, the purchase shall become void, and be of no effect, but the collector shall not refund the amount paid in cash at the time of the sale, except in cases of sale in error. *** The lien for taxes for such amount, however, shall remain on the land, in favor of the purchaser, his heirs or assigns, until paid with 5% interest on such amount from the date the purchaser paid it ***.”

Under the statute as it now reads, a successful bidder must make two payments in order to complete the sale. (Hoffmann v. Stuckslager (1971), 48 Ill. 2d 262, 267.) At the time the sale is held and the bid is accepted, he need pay only the taxes, interest and costs as advertised. Thereafter, he must pay all amounts due on the delinquent lands which were not included in the advertisement, and those may be substantially larger. Here, the error in the record was discovered before the second payment was due and thus prior to the completion of the sale. As to this property, plaintiff was not yet the owner of the fee (see Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 95), nor even a certificate holder, but only a bidder in the process of making a purchase. Where a clerical omission concerning the amount due is discovered during the pendency of a tax sale, a prospective purchaser may not use that error to prevent collection of tax revenue to which the government is entitled. (See Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1; Mr. Car Wash, Inc. v. Department of Revenue (1975), 27 Ill. App. 3d 931.) It is firmly established public policy that an official’s negligence or mistake in performing his statutory duties shall not deprive a taxing body of public revenues. People ex rel. Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 Ill. 2d 210, 220; Skillet Fork River Outlet Union Drainage District v. Central Lumber Co. (1964), 31 Ill. 2d 312, 316.

Plaintiff urges that the remedy here lies in actions upon the official bonds of the treasurer and collector for the amount of the unpaid taxes, rather than “penalizing” plaintiff. But those actions exist only if the holding of Jackson Park Hospital is controlling here. Since we hold it is not, there is no occasion to consider the question of actions upon the official bonds. Nor is it a necessary consequence, in our judgment, that plaintiff suffer a substantial loss. Cook County is the seller of the property and, if not precluded by the statute, is in a position to refund to plaintiff the amounts paid to it in reliance on the record. That action will place plaintiff in substantially the same position it was in prior to making the payment. It eliminates any significant prejudice to plaintiff, and the governmental taxing units are not denied revenue to which they are entitled.

The trial court suggested such a solution but plaintiff rejected the offer, contending that the court had no power to enter such an order because section 247 of the Revenue Act (Ill. Rev. Stat. 1975, ch. 120, par. 728) prohibits the refund of previously paid taxes “except in cases of sale in error.” Plaintiff notes that section 260 of the Act (Ill. Rev. Stat. 1975, ch. 120, par. 741) sets forth certain instances when the county clerk shall declare a sale to be “in error” (see La Salle National Bank v. Hoffman (1971), 1 Ill. App. 3d 470), and that none of those situations are presented here. It urges that those grounds are exclusive, so that the clerk cannot be required to provide a refund under any other circumstances. Since a refund is not an available remedy, plaintiff argues, the trial court, in order to do equity to the innocent tax-sale bidder, must order the defendants to consider the unpaid taxes as being paid and to deliver the certificate of purchase.

We disagree with plaintiff’s construction of these sections. Section 260 does not define a “sale in error”; it simply lists those circumstances under which the clerk shall declare a sale to be in error, refund the amount paid, and cancel the certificate of purchase which has been issued. Those circumstances are not declared to be exclusive, and the section, by its own terms, does not contemplate a situation such as that here presented. Section 247, on the other hand, permits a refund where a sale is made “in error” and a successful bidder has advanced funds under the special two-payment procedure; it does not limit or define a “sale in error” for the purpose of that section. In our opinion, section 247 authorizes a refund here. Certainly it contains nothing which would preclude such relief under the equitable powers of the court. This court held long ago that equity has jurisdiction to correct the mistake of a county ministerial officer. (Foster v. Clark (1875), 79 Ill. 225.) Having that jurisdiction, the court may award a refund in order to do complete equity to all parties involved. In our judgment a refund can and should be ordered here not only to prevent unfairness to this plaintiff, but to further public policy. “[Protection of the rights of purchasers of real estate sold for delinquent and forfeited general taxes is in the public interest.” (City of Chicago v. City Realty Exchange, Inc. (1970), 127 Ill. App. 2d 185, 190.) “Equity courts may, and often do, go much further in giving *** relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” County of Du Page v. Henderson (1949), 402 Ill. 179, 192.

We agree with plaintiff that the policy of this State is to encourage bidders to participate in tax sales in order to assure effective collection of revenue, and we do not regard this decision as thwarting that policy. The availability of a refund in those few cases where such errors are made is, we believe, sufficient protection for the tax-sale bidder.

The ruling of Jackson Park Hospital on the particular facts there presented was proper. Its broad language, however, is not applicable here to a differing set of facts — an uncompleted two-step tax sale governed by statute. See Forman Realty Corp. v. Brenza (1957), 11 Ill. 2d 531.

The judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE WARD

text:
    (No. 49733.
    JOHN WALKER, Appellant, v. THE INDUSTRIAL COMMISSION et al.— (Tootsie Roll Industries, Appellee.)

      Opinion filed September 19, 1978.

      George J. Murges, of Chicago (George J. Murges and John T. Bowman, of counsel), for appellant.

      Morrill, Koutsky, Chuhak, Upton & Tecson, of Chicago (Marion N. Baruch, of counsel), for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

This is a direct appeal by the claimant, John Walker, under our Rule 302(a) (58 Ill. 2d R. 302(a)) from a judgment of the circuit court of Cook County which confirmed an Industrial Commission award of compensation for a 50% permanent loss of use of the left eye. The Commission, on review, had increased an arbitrator’s award for a 20% loss of use. The claimant contends that under the evidence in the record he should have received an award for 100% permanent loss of use of the eye. In the alternative, he asks that we direct the entry of an award on the basis of uncorrected vision of 20/200 in the left eye.

The claimant is employed as a candy cook by the respondent, Tootsie Roll Industries. On October 24, 1974, while adjusting a machine that pumps chocolate paste into candy, the handle of his channel-lock pliers slipped and struck his left eye. The plant nurse treated his injury with ice packs and medicinal drops, and the following day sent him to a medical clinic. After several days of treatment at the clinic, he was referred to Drs. Vernon Page and Alfred Stonehill, opthalmologists engaged by the respondent. Their examination revealed a subcapsular cataract of the left eye which “could and might have resulted from the accident,” and vision of 20/70 in both eyes, presumably without corrective lenses. Their report stated that the cataract condition might be progressive. Two examinations conducted approximately one year later by Dr. Burton Russman (the claimant’s eye specialist) and Dr. Burton Zeiger disclosed uncorrected vision in the left eye of 20/200, and corrected vision of 20/60. Reports of both of these opthalmologists noted the subcapsular cataract.

The claimant testified at the hearing before the arbitrator that he noticed nothing unusual in the vision in his left eye prior to the accident and that he had worn prescription glasses only to read fine print. His most recent automobile driver’s license, which had been issued prior to the accident, was received into evidence, and showed no driving restriction of corrective lenses. He stated that he now wears prescription glasses for driving and reading fine print, and that he suffers from blurred vision, a condition which is somewhat corrected by the wearing of glasses.

The claimant frames the issue as being “whether compensation for eye injury should be determined by actual loss of vision [that is, as uncorrected] or as corrected by lenses.” He argues that there was undisputed evidence of a vision loss in the left eye from what had been normal vision prior to the accident, to 20/200. He observes that this court described 20/200 to be “complete industrial loss of sight” in Friel v. Industrial Com. (1947), 398 Ill. 361, 362, and argues that an award for 100% loss of the use of the eye is therefore required.

We would first observe that the claimant’s statement that “nothing in the record indicates *** any prior loss of vision” has to be regarded with circumspection. The claimant did testify that prior to his accident he used glasses only to read fine print, but he did not seek to introduce evidence of his prior vision from three eye examinations the record shows he had before the injury involved here. It should be noted, too, that in Friel v. Industrial Com. the only question involved was whether the claimant’s injury arose out of his employment. The court’s unstudied remark regarding industrial blindness was no part of the holding in the case.

The claimant’s contention that his award was inadequate of course rests on the assumption that the Commission’s finding of 50% loss was based upon a measurement of his vision loss as corrected, rather than upon an uncorrected loss. The record does not support that assumption. There is nothing in the record to indicate how the claimant’s loss was measured by the Commission. The finding is simply that there was a 50% loss of vision in the left eye.

The Workmen’s Compensation Act is silent on the question of whether the extent of loss of use shall be determined on the basis of uncorrected vision or vision as corrected by the use of glasses. (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e); Lambert v. Industrial Com. (1952), 411 Ill. 593, 599.) This court, however, in Lambert considered this question and observed that the decisions of other jurisdictions are in conflict. The court said:

“The general question, whether corrected vision is a factor in determining the extent of eye injuries, has been before the courts of other States and the decisions are in sharp conflict. This conflict is clearly shown by the cases and annotations appearing in 8 A.L.R. 1322, 24 A.L.R. 1462, 73 A.L.R. 706, 99 A.L.R. 1492, 142 A.L.R. 816. A study of these cases reveals that they cannot be reconciled and the courts are not in harmony on this question. Some of the differences are due to variation in the wording of the statutes. Many of the differences are due to the court’s interpretation of the purpose of the statute, i.e., if the purpose of the statute is to compensate in a specific amount for a specific loss, naked vision, alone, should be considered, but if the purpose of the statute is to compensate for loss of earning power, then corrected vision should be a factor. Another cause of the conflict, not only between the different jurisdictions but even within the same jurisdiction, lies in the inclination of the courts to do justice in the case then before it with no intention of establishing a rule binding in all other cases.” Lambert v. Industrial Com. (1952), 411 Ill. 593, 603.

The court concluded that the most acceptable view was that the extent of the loss of use of the eye is a question of fact in each case and is not one to be determined by a mechanical measurement as to corrected vision or uncorrected vision. The court rejected the standard of corrected or uncorrected vision, observing:

“The real difficulty, and one of the causes of the lack of harmony in the authorities, lies in the fact that neither rule is adequate to cover all cases. If naked vision, alone, is considered, the worker with corrected vision is not adequately protected, and if corrected vision, alone, is considered, the worker with uncorrected vision is not fully protected. In the first instance, the loss of an eye ‘industrially blind’ with naked vision, but normal with correction, would not be compensable; in the second, an injury rendering a normal eye industrially blind would not be compensable if it could be corrected to normal by the use of glasses.” (Lambert v. Industrial Com. (1952), 411 Ill. 593, 604.)

Thus, in this jurisdiction the extent of loss of the use of an eye is a question of fact and the finding of the Industrial Commission on it will not be disturbed on review unless the finding is contrary to the manifest weight of the evidence. (Santiago v. Industrial Com. (1977), 66 Ill. 2d 356, 359; C.S.T. Erection Co. v. Industrial Com. (1975), 61 Ill. 2d 251, 257; Lambert v. Industrial Com. (1952), 411 Ill. 593, 607-08. See generally W. Schneider, Workmen’s Compensation secs. 2346(d), (e), at 727-37 (3d ed. 1957); 2 A. Larson, Workmen’s Compensation sec. 58.13 (1976).) This is of course without prejudice to the rights of a claimant under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)) in the event of an increase in the disability.

The claimant also contends that the award made does not correspond to the percentages table he says is sometimes used by the Commission in cases involving losses of vision. But if that is so, it is not material, for as this court said in Hamilton Engineering Co. v. Industrial Com. (1947), 399 Ill. 30, 41: “The legislature has not seen fit to provide or establish any standard or table with which to measure the extent of vision, and their use and reference thereto are to be considered only as elements of the evidence.” Too, it may be observed that the percentage tables referred to in the claimant’s and respondent’s briefs are not themselves in agreement as to what percentage losses are indicated by defined objective measurements. This serves to point out the difficulty, or even futility, of attempting to use a single standard or table to govern the measurement of vision losses in every case regardless of its circumstances.

The finding of the Commission is not contrary to the manifest weight of the evidence and reasonable inferences to be drawn from it. It will not be disturbed simply because this court might have drawn other inferences. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 50167.
    JAMAICA INN, INC., et al., Appellees, v. RICHARD J. DALEY, Mayor, et al., Appellants. — PIGALLE LOUNGE, INC., et al., Appellees, v. RICHARD J. DALEY, Mayor, et al., Appellants.

      Opinion filed October 6, 1978.

      William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Mary Denise Cahill, Assistant Corporation Counsel, of counsel), for appellants.
    Patrick A. Tuite, of Chicago, for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

On December 27, 1974, the liquor licenses of plaintiffs, Jamaica Inn, Inc. (Jamaica Inn), and Pigalle Lounge, Inc. (Pigalle), were revoked by the local liquor license commissioner for violations of Chicago ordinances. The license of Jamaica Inn was revoked for violations of an ordinance which prohibits liquor licensees or their employees from soliciting patrons to buy nonalcoholic drinks (Municipal Code of Chicago, ch. 147, secs. 147 — 15 to 147 — 15.2). The license of Pigalle was revoked for the same reason, but also because of a violation of an ordinance which prohibits nudity in a public place (Municipal Code 'of Chicago, ch. 192, sec. 192 — 8). The Liquor Appeal Commission of the city of Chicago consolidated the cases and sustained the revocations, and plaintiffs filed complaints for administrative review in the circuit court of Cook County. The circuit court upheld the Commission’s decisions. On appeal to the appellate court, the judgment of the circuit court was reversed, and the ordinances were declared unconstitutional (53 Ill. App. 3d 257). We granted defendants’ petition for leave to appeal under Rule 315 (65 Ill. 2d R. 315).

On several occasions in 1974, Chicago police officers visited the premises of the plaintiffs, Jamaica Inn and Pigalle, and witnessed the occurrences which led to revocation of plaintiffs’ licenses. The details of each visit are contained in the appellate court opinion and need not be restated. A similar course of events was involved in each visit in which an officer was solicited. A waitress or dancer employed by the licensee would ask the officer if he desired a companion. In each instance the officer agreed and was joined by a female employee, usually a dancer. The officer would then be asked to buy a drink for his companion, and was charged as much as $3.75 per drink at Jamaica Inn and $4.20 per drink at Pigalle. The bartender and employees involved in the solicitation were arrested. Although some officers testified that the drinks appeared to be liquor, testimony did not clearly establish whether the drinks were in fact alcoholic. It will be assumed that they were not.

The instance of nudity which led to revocation of Pigalle’s license also involved a simple factual setting. An officer entered the lounge and observed a female dancer who disrobed in the course of her performance. Upon completion of the performance, she was placed under arrest.

Following the arrests at Jamaica Inn and Pigalle, the licenses of both were revoked on the basis of the ordinance violations. The solicitation ordinance in question was promulgated under a chapter of the Chicago Municipal Code entitled “Liquor Dealers,” pursuant to the States’ authority to regulate the sale of liquor under the twenty-first amendment (U.S. Const., amend. XXI). The ordinance provides:

“For the purposes of this section, the following terms shall have the meaning ascribed to them in this subsection:
A. Employee. The term ‘Employee’ means any agent, manager, employee, entertainer, barkeeper, host, hostess, waiter, waitress or other person employed *** on any contractual basis by such an establishment, or receiving any remuneration for services in such an establishment;
B. Licensed Establishment. The term ‘Licensed Establishment’ means any place of business which has been issued a city license for the retail sale of alcoholic beverages;
C. Patron. The term ‘Patron’ means any patron, customer, or visitor of a licensed establishment who is not employed by such establishment.” Municipal Code of Chicago, ch. 147, sec. 147 — 15.
“No licensee or any employee of a licensee shall:
(a) Solicit, induce or request any patron of the licensed establishment to purchase any alcoholic or non-alcoholic beverage for himself or any other employee of the licensed establishment; or
(b) Knowingly serve to any employee any alcoholic or non-alcoholic beverage which was purchased by any patron.” Municipal Code of Chicago, ch. 147, sec. 147-15.1.
“No licensee, manager or barkeeper of a licensed establishment shall permit any employee to remain on the premises of the licensed establishment who solicits, induces or requests a patron to purchase an alcoholic or non-alcoholic beverage for any employee.
Nothing in this section prohibits the above activities where the patron and employee are related by blood or marriage.” Municipal Code of Chicago, ch. 147, sec. 147-15.2.

The nudity ordinance in question was not promulgated pursuant to the States’ authority to regulate the sale of liquor nor under the “Liquor Dealers” provisions of the Chicago Municipal Code, but rather under the chapter entitled “Public Morals.” The ordinance, since amended (see Journal of the Proceedings of the City Council of the City of Chicago, Illinois 7228-29 (January 17, 1978)), provided:

“Any person who shall appear in a public place in a state of nudity, or in a dress not belonging to his or her sex, with intent to conceal his or her sex, or in an indecent or lewd dress, or who shall make any indecent exposure of his or her person, shall be fined not less than twenty dollars nor more than five hundred dollars for each offense.” Municipal Code of Chicago, ch. 192, sec. 192-8.

Plaintiffs contend, and the appellate court held, that the solicitation ordinance violates the equal protection clauses of the United States Constitution (U.S. Const., amend. XIV) and Illinois Constitution (Ill. Const. 1970, art. I, sec. 2), and that the nudity ordinance impermissibly intrudes upon freedom of expression guaranteed by the first and fourteenth amendments to the United States Constitution (U.S. Const., amends. I, XIV). Defendants ask us to uphold the constitutionality of the ordinances and, concomitantly, the revocation of plaintiffs’ licenses. The parties also raise the issue of the res judicata effect of a prior action regarding the solicitation ordinance, Jamaica Inn, Inc. v. Daley (1975), 29 Ill. App. 3d 770. We address this issue first.

The prior action was brought by Jamaica Inn, Pigalle, other licensees, employees and a patron, and failed in seeking injunctive relief and a declaration that the ordinance prohibiting solicitation of drinks violates, inter alia, equal protection guarantees. Plaintiffs here argue that their right to equal protection has been violated for two reasons: first, that the ordinance is underin elusive because it does not prohibit solicitation in unlicensed premises; and second, that the ordinance is overinclusive because it applies to nonalcoholic beverages.

In support of their respective contentions, the parties both cite the following language from the court’s opinion in Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 427:

“When the second action between the same parties is upon a different cause of action, claim or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined.”

It is the position of the defendants that the doctrine of collateral estoppel, or estoppel by verdict, precludes plaintiffs from again challenging the constitutionality of the solicitation ordinance. We agree. Having once raised the issue, plaintiffs may not now seek its relitigation. (City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 207-08.) We therefore hold that plaintiffs may not again question the validity of this solicitation ordinance. To hold otherwise would sanction the multiplicity of litigation that the doctrine of res judicata was designed to avoid. City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 207-08.

In light of our treatment of defendants’ plea of prior adjudication and our disposition of the solicitation issue, we need not address the issue of the constitutionality of the nudity ordinance. (Howard v. Lawton (1962), 22 Ill. 2d 331, 334.) The license of each plaintiff was revoked for a violation of the solicitation ordinance, and the revocations may therefore be upheld. Revocation of Pigalle’s license, effectuated in part because of a violation of the nudity ordinance, would still be effective even if we were to invalidate the nudity ordinance, since the revocation would still be supported by a violation of the solicitation ordinance.

For the foregoing reasons, we hold that plaintiffs’ arguments concerning the solicitation ordinance are barred under the doctrine of res judicata and that the ordinance is valid. Because the licenses of both plaintiffs were revoked under the solicitation ordinance, the revocations are upheld.

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

Appellate court reversed; circuit court affirmed.


author:
MR. JUSTICE KLUCZYNSKI
      MR. JUSTICE CLARK,

text:
    (No. 49558.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES MURPHY, Appellant.

      Opinion filed October 6, 1978.

      CLARK, J., specially concurring.
    Ralph Ruebner and Mary Robinson, Deputy Defenders, and Alan D. Goldberg, Assistant Defender, of the Office of State Appellate Defender, of Elgin (Joshua Sachs, of Chicago, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and Dennis Ryan, State’s Attorney, of Waukegan (Donald B. Mackay, Melbourne A. Noel, Jr., and Joseph P. Bohn, Assistant Attorneys General, of Chicago, and Phillis J. Perko, of the Illinois State’s Attorneys Association, of Elgin, of counsel), for the People.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, James Murphy, was indicted in Lake County for rape and indecent liberties with a child (Ill. Rev. Stat. 1973, ch. 38, pars. 11 — 1, 11 — 4). His first trial ended in a mistrial when the jury was unable to reach a verdict. At his second jury trial before the same judge, defendant was found guilty of indecent liberties only and was sentenced to 12 to 70 years’ imprisonment. The appellate court affirmed. (47 Ill. App. 3d 278.) We granted defendant’s petition for leave to appeal under Rule 315 (65 Ill. 2d R. 315).

Three issues are raised. First, whether the facts raised a bona fide doubt of defendant’s fitness for trial requiring the trial judge to hold a fitness hearing sua sponte under section 5 — 2—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1). Second, whether defendant received competent assistance of privately retained counsel. Third, whether the sentence was excessive.

Defendant was charged with sexually molesting a 6-year-old girl on August 31, 1974. He was arrested on September 9, 1974.

Prior to the first trial, the prosecution requested a pretrial psychiatric examination of defendant (Ill. Rev. Stat. 1973, ch. 23, par. 2402), since he was charged with indecent liberties with a child. (Subsequent to these proceedings, this court held in People v. Pierce (1976), 62 Ill. 2d 223, 225, and the statute was amended to provide (Ill. Rev. Stat. 1977, ch. 23, par. 2402), that such an examination need be given only at the request of the defendant.) The trial court ordered an examination, limited to a determination of whether defendant was suffering from mental disease. After discussion with counsel for defendant, the trial court indicated the question of fitness for trial was not raised. Counsel stated that defendant understood the nature of the proceedings against him.

The psychiatric report by Dr. Ronald Baron concluded that defendant is “fairly severely mentally retarded” but “able to understand simple procedures but not complicated ones or those having abstract meanings.” Defendant denied the crime but appeared evasive when he did so, giving the psychiatrist the impression defendant was lying. Defendant knew his attorney’s name and knew the crime with which he had been charged.

Dr. Edward Leslie, a psychiatrist, found defendant to be of dull-normal intelligence in an interview situation. Defendant was not particularly direct in his answers. He was aware of the charges against him and denied his guilt. He was able to read and understand a Miranda rights statement (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602). He was aware of the help he could receive from an attorney. The doctor further concluded that defendant was fit to stand trial.

Preceding the first trial, defense counsel moved on several grounds to suppress confessions defendant had made to the police. Included was the ground that defendant’s limited intellectual capacity precluded him from reading and understanding the alleged statements. The motion was renewed prior to the second trial. In support of the motion, defense counsel filed an affidavit by defendant’s sister attesting that defendant is of limited intellectual capacity and could not have comprehended the statements bearing his signature; that he is illiterate and cannot read on any level above a first grade “cat” and “dog” vocabulary; that his last few years of education, until the compulsory age to leave school, were spent in special education classes for the retarded. His sister believed defendant could not have known what the statements purported to contain.

At the hearing on the motion, the State’s evidence was that defendant voluntarily came to the police station with Patrolman Hansen, a uniformed officer, who had been informed of defendant’s presence in the area of the ravine where the molestation had taken place. On the way to the station in the squad car, defendant was told his Miranda rights and he said he understood them. No questioning followed.

At the station, Patrolman House testified he told defendant the police were investigating a rape. According to the officer, defendant said he had seen nothing, but, when asked again, hesitantly replied he saw a 14-year-old Mexican boy rape a little Mexican girl. Defendant acted uneasy and smiled. The patrolman questioned the defendant whether he was telling the truth and asked whether defendant had molested a little girl. Defendant said he did not understand the word “molested.” The officer then asked if defendant had taken the little girl’s pants down and “screwed” her. Defendant answered, “Yeah.”

The investigation was continued by Detective Niemietz, who repeated the Miranda warnings. Defendant said he understood each one as it was read to him. Defendant read and signed a waiver form. Defendant then described how he molested a little girl, and he identified her from a photograph. The officer prepared a typed statement and read it to defendant. Defendant appeared to read it to himself and then signed the statement. Defendant was then charged with rape and indecent liberties with a child.

The next morning defendant was again given his Miranda warnings, and he said he understood them. He again signed a waiver of rights form and agreed to questioning. He admitted and recounted his molestation of the girl.

During the course of the investigation, defendant indicated to the officers he did not understand the words “penetrate,” “molest,” “psychiatrist,” and “Miranda.” According to the officers, he appeared to understand those words when they were translated into the vernacular. The word “attorney” was also defined for him, as well as parts of the male and female anatomy. One officer testified defendant’s responses were slow but that he understood.

At the close of the testimony on the motion to suppress, the trial court concluded defendant intelligently and knowingly waived his Miranda rights and that he did not lack the intellectual capacity to give a statement knowingly.

Prior to the second trial on February 10, 1975, defendant renewed the motion to suppress on the grounds that he could not have knowingly waived his constitutional rights under Miranda. The trial court again denied the motion. At trial the police officers substantially repeated the testimony they had given at the hearing on the motion to suppress.

Defendant testified on his own behalf. He was questioned about his understanding of sexual terminology. Defendant’s counsel began to ask questions concerning defendant’s understanding of a lawyer’s function. Defendant knew what an attorney was and knew that counsel was representing him. The court halted this line of questioning and inquired of counsel whether she was seeking a determination of defendant’s fitness for trial. Counsel responded:

“I have fortunately two psychiatric reports very recent that he is competent to confer with counsel and to stand trial, and they are both dated late December.”

The court indicated it was relying on counsel to raise the fitness question if she had any doubt of defendant’s fitness. Defendant then read from his signed statement out loud in court. He said he could read it all.

A school psychologist testified on defendant’s behalf. He had examined defendant in 1969 when defendant was 14% years old. He had administered intelligence tests and determined defendant fell into the category of the educable mentally handicapped (EMH). This meant defendant learned more slowly than normal but could pursue academic studies. His 10 ranged from 37 to 60. Normal is 100. He could not testify as to defendant’s current mental development, although he said it would not be correct to assume defendant had made no progress.

Dr. Leslie testified on rebuttal that defendant answered directly, relevantly and coherently when asked about positive matters. He answered questions he thought harmful to him evasively, unrealistically, softly, and circuitously. Defendant was able to read.

Defendant first contends that he was denied due process of law when no hearing was held to determine his fitness to stand trial. We disagree.

It is established that the conviction of a person who is unfit to stand trial violates due process. (Pate v. Robinson (1966), 383 U.S. 375, 378, 15 L. Ed. 2d 815, 818, 86 S. Ct. 836, 838;People v. Barkan (1970), 45 Ill. 2d 261, 263; People v. Burson (1957), 11 Ill. 2d 360, 368.) And the failure to observe procedures adequate to protect a defendant’s right not to be tried while unfit deprives him of his due process right to a fair trial. Drope v. Missouri (1975), 420 U.S. 162, 172, 43 L. Ed. 2d 103, 113, 95 S. Ct. 896, 904; Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836.

In the instant case neither the defendant nor the State made a request for a fitness hearing. But because of the fundamental constitutional nature of the fitness requirement, once facts are brought to the attention of the trial court, either from observation of the defendant or by suggestion of counsel, which raise a bona fide doubt of defendant’s fitness to stand trial, the court has a duty to hold a fitness hearing. People v. Harper (1964), 31 Ill. 2d 51, 56; People v. Slaughter (1970), 46 Ill. 2d 114, 119; People v. Burson (1957), 11 Ill. 2d 360, 368-69.

The Unified Code of Corrections expressly provides for this:

“(b) *** [T] he question of fitness may be raised by the State, the defendant or the court.
(c) When a bona fide doubt of the defendant’s fitness to stand trial or be sentenced is raised, the court shall order that a determination of that question be made before further proceedings.” Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 2—1(b), (c).

Fitness for trial consists of two qualities enumerated in the Unified Code of Corrections: the ability to understand the nature and purpose of the proceedings and the ability to assist in one’s defense. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1(a); People v. Foley (1963), 28 Ill. 2d 426, 427; cf. Dusky v. United States (1960), 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788, setting forth similar criteria for Federal cases.) The critical inquiry is thus whether the facts presented a bona fide doubt that defendant possessed the two qualities necessary to make him fit for trial.

Whether a bona fide doubt has been raised is a decision resting largely within the discretion of the trial court. (People v. Skorusa (1973), 55 Ill. 2d 577, 582; People v. Southwood (1971), 49 Ill. 2d 228, 230; People v. Franklin (1971), 48 Ill. 2d 254, 258; People v. Dudley (1970), 46 Ill. 2d 305, 309-10.) In resolving this issue we bear in mind that the trial court, unlike the reviewing courts, was in a position to observe the defendant and evaluate his conduct. People v. Dudley (1970), 46 Ill. 2d 305, 310; People v. Foley (1963), 28 Ill. 2d 426, 428; People v. Cleggett (1961), 22 Ill. 2d 471, 474.

Defendant testified on his own behalf. His responses were inarticulate, but he appeared to understand what he was being questioned about. He cooperated with counsel in answering questions to indicate his confessions were not voluntary and otherwise denied his guilt. He testified the police threatened him to compel him to sign the confessions and that he was arrested by mistake. It appeared that he evaded answering questions seemingly damaging to him.

The court heard evidence by police officers who investigated defendant. Defendant told them he understood his Miranda rights. Words he indicated he did not understand were defined in simple terms, and he appeared to understand them upon explanation. His demeanor indicated he understood what he was being questioned about.

Psychological reports and testimony indicated defendant was retarded. He was, however, an educable mentally handicapped person who could understand and reason, although more slowly than average. He finished two years of high school, apparently in special classes. Although the psychiatric reports were not ordered to determine defendant’s fitness for trial, they addressed relevant questions. The psychiatric reports indicated defendant knew his attorney’s name. He knew about the crime with which he was charged and denied his guilt. Defendant gave one psychiatrist the impression he was lying when he denied the crime. The other concluded defendant was fit to stand trial. At trial psychiatric testimony indicated defendant avoided answering questions he thought unfavorable to him; defendant’s evasive testimony was thus purposive and negated doubt of his fitness to stand trial.

The trial court received assurances by defense counsel that in her opinion and as a result of psychiatric reports there was no doubt of defendant’s fitness for trial. She said defendant understood, was competent to confer with counsel, and could stand trial.

Counsel’s suggestion that defendant had limited mental capacity is not sufficient of itself to raise a bona fide doubt of defendant’s fitness for trial. (People v. Harper (1964), 31 Ill. 2d 51, 56; People v. Foley (1963), 28 Ill. 2d 426, 428; People v. Slaughter (1970), 46 Ill. 2d 114, 119.) Other evidence pointed clearly to defendant’s comprehension of his predicament.

“Fitness speaks only to a person’s ability to function within the context of trial.” (Ill. Ann. Stat., ch. 38, par. 1005 — 2—1, Council Commentary, at 220 (Smith-Hurd 1973).) It does not refer to sanity or competence in other areas. A defendant can be fit for trial although his mind may be otherwise unsound. Withers v. People (1961), 23 Ill. 2d 131, 135; People v. Burson (1957), 11 Ill. 2d 360, 369.

The trial judge indicated he did not want to halt the proceedings for a fitness hearing but that if counsel felt there was a doubt as to defendant’s fitness she should raise it. The trial judge stated he was relying on counsel to raise the issue if she felt it was justified. He was not abrogating his duty to order a hearing on fitness but was admonishing counsel to adhere to hers.

The defendant argues that both the trial court and the appellate court operated under the misapprehension of law that it was the duty of counsel alone to request a fitness hearing. The appellate court relied on its earlier opinion in People v. Edwards (1975), 28 Ill. App. 3d 216, 219, which contains an accurate exposition of the law. That case relied in turn on this court’s opinion in People v. Skorusa (1973), 55 Ill. 2d 577,583.

The cases cited by defendant do not convince us it was error not to hold a fitness hearing. The doubt of fitness presented by the record in Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836, is absent here. There the United States Supreme Court held that Robinson’s history of pronounced irrational behavior required a fitness hearing. Robinson shot and kHled his girlfriend. He had suffered a blow to his head as a child and had exhibited aberrant behavior thereafter. He was treated as an in-patient at a psychiatric hospital after a display of paranoid behavior. He kUled his son and shot himself in his head. He was imprisoned and released after four years. He then küled his girlfriend. His conduct threw doubt on his ability to comprehend the nature of the crime and the proceedings.

In People v. Thomas (1969), 43 Ill. 2d 328, the defendant said God was his attorney, not the public defender appointed to represent him, and that he was the son of Jacob. He was of low-average intelligence. Counsel said he could not communicate with him, although psychiatric reports indicated defendant was fit. The court said:

“The consequence of a lack of co-operation, as this case illustrates, is to deny counsel access to defendant’s knowledge of the factual basis of the charges against him, or to information that might refute those charges. *** To require counsel to attempt a defense without the defendant’s cooperation thus imposes a substantial burden. Such a requirement should be imposed only when the defendant’s unresponsiveness is not the result of a lack of mental capacity.” (43 Ill. 2d 328, 332.)

A fitness hearing was required.

In People v. Burnside (1977), 52 Ill. App. 3d 524, the defendant went into a department store, took a suitcase and filled it with clothes in front of store employees. He said he was entitled to take the clothing and had done nothing wrong. There was conflicting psychiatric testimony on fitness. A fitness hearing was required.

In People v. Burson (1957), 11 Ill. 2d 360, defendant was unable to cooperate with counsel. Therefore, a fitness hearing was required. Defendant refused the assistance of the public defender. He questioned the judge and prospective jurors about their belief in God. He called his attorneys as witnesses to question them about their prejudices and about political pressure on them. He addressed them insultingly. Defendant made his own closing argument which consisted of a harangue on his religious beliefs.

In contrast the evidence here presents an educable mentally handicapped young man who comprehended his situation and recognized the nature and purpose of the proceedings against him and the function of an attorney to represent him. Defendant cooperated with counsel in presenting his defense.

More similar factually to this case is People v. Sephus (1970), 46 Ill. 2d 130. The record indicated that a clinical psychologist testified that, based on the results of psychological tests, defendant functioned at an intellectual level which was considered mild retardation. There was psychological testimony that the defendant could understand the proceedings against him and would be able to cooperate with counsel. The court therefore held there was no error in failing to hold a fitness hearing.

The United States Supreme Court has noted:

“There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.” Drope v. Missouri (1975), 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118, 95 S. Ct. 896,908.

Thus, the determination of whether there is a bona fide doubt of fitness for trial depends on the facts of each case. The trial court indicated it had no bona fide doubt of defendant’s fitness. The record supports such a conclusion. We find no abuse of discretion.

Defendant’s second claim is that he received incompetent assistance of counsel. He argues that counsel’s failure to ask for a fitness hearing and failure to present evidence indicating his mental incapacity at the hearing on the motion to suppress denied him competent assistance of counsel. Defendant also contends counsel was incompetent for failing to object to testimony by the victim’s mother.

Defendant is entitled to assistance of counsel under both the United States Constitution (Gideon v. Wainwright (1963), 372 U.S. 335, 342, 9 L. Ed. 2d 799, 804, 83 S. Ct. 792, 795; U.S. Const., amends. VI, XIV) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 8). Counsel, however, can be so incompetent as to undermine that right and to deprive the defendant of his due process right to a fair trial. People v. Redmond (1972), 50 Ill. 2d 313, 314-315; People v. Torres (1973), 54 Ill. 2d 384, 391; People v. Williams (1962), 26 Ill. 2d 190, 194.

A strict test is applied in determining whether privately retained counsel is incompetent:

“In such a case the court will not reverse a conviction because of the incompetency of counsel unless the representation is of such a low caliber as to amount to no representation at all or reduces the court proceedings to a farce or sham.” People v. Torres (1973), 54 Ill. 2d 384, 391. See also, e.g., People v. Redmond (1972), 50 Ill. 2d 313, 315; People v. Washington (1968), 41 Ill. 2d 16, 22.

Incompetency has been found, for example, where retained defense counsel failed to object to groundless attacks on the defendant’s character and gave an incoherent closing argument. In People v. Redmond (1972), 50 Ill. 2d 313, 315-17, counsel intermittently referred to his law practice, the strain on him that resulted from the trial, the facts of the case, and the defense during the closing argument. Counsel completely failed to represent the defendant.

Having determined that the record supports the conclusion that there was no bona fide doubt of defendant’s fitness for trial, we find that the failure on the part of defense counsel to request a fitness hearing is not indicative of a failure of adequate representation. See People v. Skorusa (1973), 55 Ill. 2d 577, 583-84.

Defendant’s second example of alleged incompetence is equally without merit. Defense counsel moved to suppress defendant’s confessions and introduced an affidavit in support of the motion to the effect that defendant was intellectually incapable of comprehending his confessions. However, counsel failed to introduce psychological and psychiatric testimony concerning defendant’s mental retardation at the suppression hearing. Initially, it must be noted that evidence of limited intellectual capacity does not, itself, indicate a defendant is incapable of waiving his constitutional rights and making a confession. That is but one issue to be considered in the totality of the circumstances under which the confession was made. (People v. Turner (1973), 56 Ill. 2d 201, 216; People v. Hester (1968), 39 Ill. 2d 489, 500; People v. Simmons (1975), 60 Ill. 2d 173, 181.) Evidence introduced by the State at the hearing on the motion to suppress indicated that defendant’s rights were carefully explained to him in defined terminology he could understand. Defendant read and indicated he understood his statements. At the conclusion of the hearing, the trial court properly determined that defendant intelligently and knowingly waived his Miranda rights.

Counsel moved to suppress the confessions. She raised the question of defendant’s intellectual limitations and filed an affidavit in support of that contention. But the State introduced strong countervailing evidence. Counsel’s failure to introduce testimony concerning defendant’s retardation did not render her representation a nullity or reduce the proceedings to a farce or a sham. Competency is determined from the totality of counsel’s conduct at trial. People v. Steel (1972), 52 Ill. 2d 442, 453;People v. Somerville (1969), 42 Ill. 2d 1, 5.

Counsel’s judgment in not introducing more evidence may have been in error. But errors in judgment or trial strategy do not establish incompetency. People v. Torres (1973), 54 Ill. 2d 384, 392;People v. Redmond (1972), 50 Ill. 2d 313, 314-15; People v. Green (1967), 36 Ill. 2d 349, 351.

The mere fact that counsel was unable to secure the suppression of the confessions does not constitute incompetence. A defendant is entitled to competent, not perfect or successful, representation. See People v. Torres (1973), 54 Ill. 2d 384, 391; 14A Ill. L. & Prac. Criminal Law sec. 499, at 513 (1968).

The third basis for the assertion of incompetence was counsel’s failure to object to testimony by the victim’s mother. The mother related the account of the molestation the child told her within one hour of the incident. The briefs highlight the reason we conclude the failure to object was not an indication of incompetency; without resolving the substantive question of whether the testimony was admissible, we note that the point was sufficiently unclear that both parties reasonably cite the same case to support opposite conclusions concerning the admissibility of the testimony (People v. Damen (1963), 28 Ill. 2d 464).

While failure to object may have been poor judgment, it did not amount to no representation or turn the proceedings into a farce. In any event, incompetency is not established by mere failure to object to inadmissible evidence. People v. Somerville (1969), 42 Ill. 2d 1, 5.

Defendant asks this court to adopt a new standard by which to measure the competency of counsel. The Seventh Circuit adopted the proposed standard in United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634, 640. The court determined that counsel’s conduct was short of the expected professional standard of competent counsel. Defendant’s attorneys failed to seek a postponement until they could learn his co-defendant’s story and establish his willingness to testify. There were no disinterested witnesses, and defendant’s testimony was vulnerable because of his prior criminal record.

Without adopting the proposed standard, we do not believe that defense counsel violated it. Counsel vigorously represented defendant through two trials. In the first, the jury was unable to reach a verdict. The second ended in acquittal on one of the two counts charged. Defendant received competent representation throughout the proceedings.

Defendant’s final contention is that his sentence of 12 to 70 years is excessive. Defendant was convicted of indecent liberties with a child. This is a Glass 1 felony (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 4) for which the penalty is any term of imprisonment in excess of four years (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b)(2)).

This court recently held in People v. Heflin (1978), 71 Ill. 2d 525, 545, that it “will not disturb a sentence imposed by the trial court unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose. (People v. Taylor (1965), 33 Ill. 2d 417.) In this State, the spirit and purpose of the law are upheld when a sentence reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. See Ill. Const. 1970, art. I, sec. 11.”

In imposing sentence here, the trial judge stated he considered defendant’s age, the nature of his offense, his educational and family backgrounds, and the nature and character of defendant himself, including his limited mental acuity. The trial court considered the seriousness of the offense, an act of sexual intercourse on the part of an adult male with a 6-year-old child. The trial court concluded that defendant should be incarcerated for a sufficient length of time to be treated and that the maximum term should be long enough to protect society in the event defendant does not respond to treatment.

The trial court reached its decision after consideration of proper factors. The sentence should not be disturbed.

The judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

specially concurring:

I concur in the opinion of the court insofar as it holds that the record does not demonstrate a bona fide doubt of defendant’s fitness to stand trial, that the circuit court therefore was not required sua sponte to order a hearing on that question (Ill. Rev. Stat. 1973, ch, 38, par. 1005 — 2—1), and that defendant’s sentence was not excessive. However, on the question of whether defendant received the effective assistance of his retained counsel, the court holds alternatively (1) “the court will not reverse a conviction because of the incompetency of [retained] counsel unless the representation is of such alow caliber as to amount to no representation at all or reduces the court proceedings to a farce or a sham” (72 Ill. 2d at 436, quoting People v. Torres (1973), 54 Ill. 2d 384, 391) and (2) even if the quality of counsel’s representation were judged by the stricter standard of United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634, 641 (“the Constitution guarantees a criminal defendant legal assistance which meets a minimum standard of professional representation”), it was not ineffective. In my opinion, the time has come to abandon the “farce or sham” and “no representation at all” tests in favor of a test requiring assistance meeting minimum standards of professional representation, but I agree with the majority that the record does not demonstrate that counsel’s performance in this case failed to satisfy the latter standard. Therefore, I concur only in the judgment of the court on this question.

The right of a defendant in a criminal case to have the assistance of counsel in his defense is guaranteed by the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV (see Gideon v. Wainright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792; Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006)) and by section 8 of article I of our constitution (Ill. Const. 1970, art. I, sec. 8). (See, e.g., People v. Hoffman (1942), 379 Ill. 318, 320-22, construing article II, section 9, of the Illinois Constitution of 1870.) The reasons which underlie this fundamental constitutional guarantee have been stated so eloquently by others before us that we need only repeat their words here:

“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.” (Powell v. Alabama (1932), 287 U.S. 45, 69, 77 L. Ed. 158, 170-71, 53 S. Ct. 55, 64.)

The late Mr. Justice Dooley of this court, himself a formidable advocate, further elaborated on the role of diligent and skillful advocacy in determining the outcome of a criminal trial:

“The fearless and courageous advocate is as important to the administration of justice as an independent judiciary. Without him all rights are mere abstractions. The outcome of the trial of Socrates, Joan of Arc, and Mary Oueen of Scots could possibly have been different had a strong and fearless advocate appeared in their defense.” In re Madsen (1977), 68 Ill. 2d 472, 494 (Dooley & Clark, JJ., dissenting).

A defendant whose counsel has failed to adequately research the law and investigate the facts prior to trial (see United States v. DeCoster (D.C. Cir. 1973), 487 F.2d 1197, 1202-04; accord, ABA Standards, The Defense Function secs. 4.1,5.1(a) (1971); Bazelon, The Realities of Gideon and Argersinger, 64 Geo. L.J. 811, 823-24 (1976)) is in little better position than “the ■ intelligent and educated layman” whose plight is so well described in Powell v. Alabama. However, in the land of the blind, the one-eyed man is king, and the defendant is likely to be lulled into a false sense of security by the advice of his attorney, however uninformed. That the defendant undertook to retain counsel rather than seek the appointment of counsel is only marginally relevant to the determination of the standard by which counsel’s performance must be evaluated, because persons not trained in the law cannot, as a general rule, fairly be presumed to have been able to critically evaluate the skill and diligence of the attorneys they retain. (But cf. Glosser v. United States (1942), 315 U.S. 60, 70, 86 L. Ed. 680, 699, 62 S. Ct. 457, 465 (defendant’s status as an attorney not dispositive of whether he waived right to counsel who is free of conflict of interest).) By licensing attorneys (see generally Supreme Court Rules 701-705, 707-708 (58 Ill. 2d Rules 701-705, 707-708)), this court has, to some degree, placed its imprimatur upon their competence., and is estopped from asserting caveat emptor as to their incompetence. Thus, I cannot concur in the application of a less stringent standard in reviewing the performance of retained counsel than that applicable to the performance of appointed counsel.

Regardless of whether counsel was appointed or retained, the “farce or sham” and “no representation at all” tests do not adequately confront the question of whether counsel diligently and competently performed those tasks for which counsel is necessary. Rather, under these tests, there is a natural tendency to point to mistakes which counsel did not make, as proof of his effectiveness, and to presume that those mistakes which counsel did make were the result of informed tactical decisions, even though they may in fact have been due to inadequate preparation. E.g., People v. Witherspoon (1973), 55 Ill. 2d 18, 21-22; People v. Steel (1972), 52 Ill. 2d 442, 451-53; People v. Washington (1968), 41 Ill. 2d 16, 20-22. See also Finer, Ineffective Assistance of Counsel, 58 Cornell L. Rev. 1077, 1078 (1973); cf Note, Inadequate Assistance of Criminal Trial Counsel: The Standards for Illinois, 47 Chi-Kent L. Rev. 218, 225 (1970).

In this case, I am persuaded that whatever standard is applied, counsel’s inquiry into the legal principles and factual circumstances relevant to the three decisions now challenged by defendant was adequate to enable her to reach informed conclusions, and that the conclusions she reached were reasonable ones. First, as to the failure to request a competency hearing, counsel reasonably could have believed, as I do, that given the psychiatrists’ reports, defendant was not likely to have been found incompetent to stand trial, and that the highlighting of that psychiatric testimony carried with it the risk that a greater sentence might be imposed upon the defendant, if convicted, out of a desire to separate him from society. Second, as to the failure to introduce psychiatric testimony at the suppression hearing, similar considerations militated against the use of such testimony here too.«Third, as to counsel’s failure to object to the testimony of the victim’s mother regarding statements allegedly made by the victim, these statements were admissible under the spontaneous declaration exception to the hearsay rule, because the immediate effects of the alleged physical trauma still were extant at the time of the alleged declaration and the victim probably had not had time to fabricate her story. (See People v. Damen (1963), 28 Ill. 2d 464, 471-72.) Accordingly, I concur in the judgment of the court insofar as it holds that counsel was not ineffective, but not in its test of counsel’s effectiveness.