author: MR. JUSTICE RYAN MR. JUSTICE WARD,

text:
    (No. 52348.

      In re MARRIAGE OF LINDA S. LENTZ, Appellee, and LARRY DEAN LENTZ, Appellant.

      Opinion filed April 18, 1980.

      WARD, J., specially concurring.
    Robert Weiner and Terry L. Fields, of Springfield, for appellant.
    Robert I. Auler, of Urbana (Daniel King, law student, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal involves the construction of certain provisions of the recently enacted Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.). It concerns the appealability of a judgment entered pursuant to sections 401 and 402 (Ill. Rev. Stat. 1977, ch. 40, pars. 401, 402). The resolution of this issue requires the examination and construction of certain language contained in section 413(a) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 413(a)).

Linda S. Lentz filed a petition for dissolution of marriage in the Champaign County circuit court. Larry Dean Lentz, her husband, filed a counterpetition for legal .separation and an answer to the petition for dissolution. The hearing on the grounds for dissolution was conducted in accordance with section 403(e) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)), which provides for a determination of the dissolution or separation issue separately from other issues. The trial court entered a judgment order wherein respondent’s counterpetition for legal separation was denied and the petition for the dissolution of marriage was granted. The judgment order reserved the questions of maintenance and property division for future court action. The order did not contain language to the effect that there was no just reason for delaying enfolcement or appeal. (See 73 Ill. 2d R. 304(a).) Subsequent to the trial court’s denial of respondent’s motion for reconsideration, the respondent appealed from the judgment.

On appeal, the appellate court, sua sponte, questioned its jurisdiction to entertain the appeal. (73 Ill. App. 3d 93.) The court noted that multiple claims for relief were presented and that an appeal from a final judgment entered on less than all of the claims was permissible only under our Rule 304(a) (73 Ill. 2d R. 304(a)). The court found the judgment of dissolution to be final as to the marital status and nonfinal as to the claims left pending. Since the final judgment, which was entered on less than all of the claims, did not include language to the effect that there was no just reason to delay enforcement or appeal, as required by our Rule 304(a), the appellate court concluded that it lacked jurisdiction and dismissed the appeal.

In the case of Strukoff v. Strukoff (1979), 76 Ill. 2d 53, this court upheld the validity of section 403(e) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)), which provides that a bifurcated procedure is to be followed in the event of a contested trial. We must now determine whether an appeal may be taken from a judgment of dissolution, entered subsequent to the hearing on the grounds for dissolution, which reserves further matters for judicial consideration. We must necessarily construe the meaning and effect of section 413(a) of the Act, which provides in part:

“A judgment of dissolution of marriage or of legal separation or of declaration of invalidity of marriage is final when entered, subject to the right of appeal.” Ill. Rev. Stat. 1977, ch. 40, par. 413(a).

The language of section 413(a), on its face, appears to make the judgments enumerated therein appealable. However, article VI, section 16, of our constitution provides, in part:

“The Supreme Court shall provide by rule for expeditious and inexpensive appeals.”

This court has held that this language (which was then contained in article VI, section 7, of the Constitution of 1870) places the responsibility for rules governing appeals in the supreme court and not in the General Assembly. (People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 66; see also People v. Taylor (1971), 50 Ill. 2d 136, 140.) For historical analysis of the rule-making power of the court, see People v. Jackson (1977), 69 Ill. 2d 252.

Our Rule 1 provides in part:

“The rules on appeals supersede statutory provisions inconsistent with the rules and govern all appeals.” (73 Ill. 2d R. 1.)

Rule 301 provides in part:

“Every final judgment of a circuit court in a civil case is appealable as of right. ” (73 Ill. 2d R. 301.)

Rule 303 (73 Ill. 2d R. 303) provides for the procedure for appealing from final judgments, and Rule 304(a) provides:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” (73 Ill. 2d R. 304(a).)

Any legislative enactment in conflict with the rules of this court governing appeals would therefore be invalid. See Strukoff v. Strukoff (1979), 76 Ill. 2d 53; People v. Jackson (1977), 69 Ill. 2d 252; People v. Kennedy (1969), 43 Ill. 2d 200; Fins, Impropriety of Illinois Legislature’s Infringement Upon the Constitutional Rule-Making Authority of the Supreme Court, 66 Ill. B.J. 384 (1978); Comment, People ex rel. Stamos v. Jones: A Restraint on Legislative Revision of the Illinois Supreme Court Rules, 6 J. Mar. J. Prac. & Proc. 382 (1973).

If section 413(a) of the Act were to be construed as an attempt by the legislature to make a judgment of dissolution of marriage final and appealable when entered, its validity would be in question. Not only would such legislation constitute an attempt to legislate in regard to the taking of appeals, an area in which the Constitution has conferred authority on this court, but also such legislation could be in direct conflict with the provisions of our Rule 304(a) governing appeals from final judgments as to fewer than all of the parties or claims. In Stubblefield v. City of Chicago (1971), 48 Ill. 2d 267, this court stated that it is our duty to interpret a statute in such a manner as to promote its essential purpose and to avoid, if possible, a construction which would raise doubt as to its validity. 48 Ill. 2d 267, 271.

An examination of the 1970 Uniform Marriage and Divorce Act reveals that our section 413(a) is substantially identical to section 314(a) of the uniform act, which provides in part:

“A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal.” (1970 Uniform Marriage and Divorce Act sec. 314(a).)

The commissioner’s note to section 314(a) of the uniform act sheds light on the meaning and the effect of this language:

“Subsection (a) abolishes interlocutory periods in those states which have them. The decree of dissolution or separation will be effective when entered, subject to the right of appeal.”

Thus, it was not the purpose of the language of section 314(a) of the uniform act to make the judgments concerning marital status final and immediately appealable. Rather, the purpose of such language is to ensure that the parties not be subject to an interlocutory period between the determination of the grounds for divorce and the effective date of the decree. Inasmuch as section 413(a) of our act substantially adopts section 314(a) of the uniform act, the commissioner’s note supports an interpretation that the Illinois legislature, by enacting section 413(a), was not attempting to define the appealability of the order. Consistent with this interpretation, the language, “subject to the right of appeal,” should be construed to mean that an appeal may be taken from such a judgment if the order is indeed appealable as a matter of right or by virtue of a supreme court rule. Such a construction would be consistent with the constitutional provisions placing in this court the authority to adopt rules governing appeals.

We need not decide whether a judgment of dissolution is a final judgment or is in fact an interlocutory judgment. That question has not been briefed and argued in this court. If such a judgment is not a final judgment, any attempt by the legislature to make it appealable would be a clear violation of article VI, section 6, of our constitution, which provides that the supreme court may provide by rule for appeals to the appellate court from other than final judgments of the circuit court. This court has provided for interlocutory appeals in our Rules 307 and 308. (73 Ill. 2d Rules 307, 308.) If the judgment is a final judgment, there is a constitutional right to an appeal to the appellate court under article VI, section 6, which provides in part:

“Appeals from final judgments of a Circuit Court are a matter of right to the Appellate Court ***.”

This constitutional provision, however, does not confer a right to an immediate appeal from final judgments. Such an appeal must be governed by the procedural rules of this court pertaining to appeals. Former section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1957, ch. 110, par. 50(2)) contained the provisions now found in our Rule 304(a) concerning appeals from final judgments that do not dispose of the entire proceeding. In Ariola v. Nigro (1958), 13 Ill. 2d 200, 207, this court stated:

“[T] he section is not one which either curtails or grants appellate jurisdiction, but is one which fixes the procedure in the trial court as to the conditions affecting the terms upon which an appeal may be taken in advance of a determination of the entire case.”

The provisions of our rule were aimed at discouraging piecemeal appeals in the absence of some compelling reason and at removing the uncertainty as to the appealability of a judgment which was entered on less than all of the matters in controversy. See Getzelman v. Koehler (1958), 14 Ill. 2d 396, 400; Davis v. Childers (1965), 33 Ill. 2d 297, 300.

The judgment of dissolution of marriage in our case reserved the other issues in controversy and therefore clearly disposed of fewer than all of the claims. If this is not a final judgment as indicated above, it is not appealable. If it is a final judgment and disposes of fewer than all of the claims, then it is appealable only in the manner provided by our Rule 304(a), which provides that an appeal cannot be taken from a final judgment which adjudicates fewer than all the matters in controversy, in the absence of an express finding by the trial judge that there is no just reason for delaying enforcement or appeal. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 432-33; White Way & Maintenance Sign Co. v. Seltzer Pontiac, Inc. (1974), 56 1Ill. 2d 342, 345; Smith v. Hodge (1958), 13 Ill. 2d 197, 199; Ariola v. Nigro (1958), 13 Ill. 2d 200, 203; Hanley v. Hanley (1958), 13 Ill. 2d 209, 210.) In the judgment of dissolution, the trial court reserved pending claims for future court action. The trial judge did not make an express finding that there was no just reason for delaying enforcement or appeal. We conclude that this was not a judgment from which an immediate appeal could be taken.

Thus, whether the judgment was interlocutory or final, it was not appealable. As noted above, we do not determine whether the instant judgment order was final. We wish to note, however, that in the event that this judgment was not final, a finding by the trial court that there was no just reason to delay enforcement or appeal would not be sufficient to confer appellate jurisdiction. Martino v. Barra (1967), 37 Ill. 2d 588, 594-95; Davis v. Childers (1965), 33 Ill. 2d 297, 300-01; Mayrath Co. v. Industrial Com. (1965), 33 Ill. 2d 224, 225; Cunningham v. Brown (1961), 22 Ill. 2d 23, 25.

In summation, we find that section 413(a) of the Illinois Marriage and Dissolution of Marriage Act is not an impermissible legislative attempt to usurp the constitutional power of this court to regulate appellate jurisdiction. We do not rule upon the nature of a judgment entered pursuant to sections 401 and 402 of the Act. We do hold, however, that the instant judgment of dissolution, reserving pending claims and lacking an express finding that there existed no just reason to delay enforcement or appeal, was not an order from which an appeal could be taken. Our limited holding, therefore, does not embrace that language of the appellate court regarding the finality of such a judgment. However, we do conclude that the appellate court was correct in its dismissal of the cause for lack of jurisdiction. Accordingly, the judgment of the appellate court is affirmed. The cause is remanded to the Champaign County circuit court for further proceedings.

Affirmed and remanded.

MR. JUSTICE WARD,

specially concurring:

In this case the trial court granted the petition for dissolution of marriage but reserved for future action ancillary questions of maintenance and property division. Under the decisions in Ariola v. Nigro (1958), 13 Ill. 2d 200, and Davis v. Childers (1965), 33 Ill. 2d 297, these deferred issues did not constitute separate “claims” within the meaning of Rule 304(a) (73 Ill. 2d R. 304(a)). The action involved but one claim, namely, the petition for a dissolution of marriage, and Rule 304(a) is thus not applicable. The cases just cited also hold that a judgment not disposing of an entire claim is not final but merely interlocutory. Thus in Davis a judgment in favor of a single plaintiff on the issue of liability but deferring the issue of damages for later determination was held not to be a final judgment. See 33 Ill. 2d at 299; Ill. Ann. Stat., ch. 110A, par. 304, Historical and Practice Notes to Rule 304, at 587-88 (Smith-Hurd 1968).

Since the present appeal does not qualify under any of our rules providing for interlocutory appeals, I agree that the judgment of the appellate court must be affirmed.


source: Caselaw Access Project

author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 52262.
    (No. 52263.
    (No. 52411.
    (No. 52814.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RODNEY BRADLEY, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOEL NOVAK, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. NANCY A. DALZOTTO, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARSHALL G. OLSEN, Appellee.

      Opinion filed April 18, 1980.

      RYAN, J., concurring in part and dissenting in part.
    William J. Scott, Attorney General, of Springfield, and C. David Vogel, State’s Attorney, of Pontiac (Donald B. Mackay and Thomas E. Holum, Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., Gillum Ferguson and Martin N. Ashley, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.

      Richard J. Wilson, Deputy Defender, and Charles M. Schiedel, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
    William J. Scott, Attorney General, of Springfield, and Kelly D. Long, State’s Attorney, of Hillsboro (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., Gillum Ferguson, and Martin N. Ashley, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, for the People.
    John H. Reid, Deputy Defender, and Jeff M. Plesko, Assistant Defender, of the Office of the State Appellate Defender, for appellee.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr and Myra J. Brown, Assistant State’s Attorneys, of counsel), for the People.
    Gregory J. Schlesinger, of Schlesinger & McGann, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In each of four criminal cases, consolidated on appeal, a defendant was charged under section 402(b) of the Illinois Controlled Substances Act (the Act) with possession of a controlled substance. (Ill. Rev. Stat. 1977, ch. 56V6, par. 1402(b).) In all four cases, the possession charges were dismissed after section 402(b) was found to be unconstitutional and void.

Defendants Rodney Bradley (cause No. 52262) and Joel Novak (cause No. 52263) were charged by indictment in the circuit court of Livingston County. Bradley was charged with unlawful possession of less than 200 grams of plurazepam, a schedule IV controlled substance, and Novak with unlawful possession of phencyclidine (PCP), a schedule III controlled substance. Each defendant moved to dismiss the indictment, and the motions were allowed.

In the circuit court of Montgomery County (cause No. 52411) defendant Nancy A. Dalzotto was charged by a three-count information with (1) driving under the influence of drugs, (2) unlawful possession of a hypodermic needle and syringe, and (3) unlawful possession of phenobarbital, a schedule IV controlled substance. After trial, she was acquitted on the first count and found guilty on the second and third counts. Her post-trial motion to dismiss the charges under the third count — possession of a controlled substance — was granted by the trial court.

In the circuit court of Cook County (cause No. 52814) defendant Marshall G. Olsen was charged by information with four counts of possession: (1) possession of amphetamine, a schedule II controlled substance; (2) possession of cocaine, a schedule II controlled substance; (3) possession of diazepam (Valium), a schedule IV controlled substance, and (4) possession of cannabis sativa. Defendant’s motion to dismiss the first three counts was granted by the trial court.

The dismissal of possession charges in each of the above cases was based upon the holding in People v. Natoli (1979), 70 Ill. App. 3d 131, wherein the penalty provision for possession under section 402(b), when compared to the penalty provision for delivery under section 401(e) of the Act, was found invalid as it violated the equal protection clause. The State has appealed the four cases directly to this court under Supreme Court Rule 302(a). 73 Ill. 2d R. 302(a).

Under section 401(e) of the Act (Ill. Rev. Stat. 1977, ch. 56%, par. 1401(e)), delivery of a schedule IV substance is a Class 4 felony which subjects the offender to an indeterminate sentence of 1 to 3 years (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1). Under section 402(b) (Ill. Rev. Stat. 1977, ch. 56%, par. 1402(b)),possession of the same substance is a Class 3 felony which subjects the offender to an indeterminate sentence of 1 to 10 years (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1).

The State contends that the penalties established for violations of the Illinois Controlled Substances Act do not deprive the defendants of equal protection of the law. It argues that all who are found guilty of possessing schedule IV controlled substances are equally subject to the possession penalty (under section 402(b)) and all who are found guilty of the manufacture or delivery of schedule IV controlled substances are equally subject to the delivery penalty (under section 401(e)); that such classification by the legislature, whereunder all within the same class are similarly treated, does not violate the equal protection clause of the United States or Illinois constitutions. Based upon this argument, the State claims that the analysis and rationale of the court in Natoli were inappropriate.

In Natoli, the defendant was convicted of possession and delivery of a schedule IV controlled substance, ethchlorvynol. He was sentenced to 1 to 3 years for delivery, under section 401(e) of the Act, and 2 to 6 years for possession, under section 402(b) of the Act (Ill. Rev. Stat. 1977, ch. 56%, pars. 1401(e), 1402(b)). The court found that it was irrational to apply a greater statutory penalty for possession than for delivery of the same substance, inasmuch as possession is a lesser included offense of delivery, i.e., all of the elements of possession are necessarily included in the offense of delivery. The court concluded:

“[I]t is clear that the statutory sentence for delivery is valid, and that the sentence for possession is not. The defendant was given a heavier sentence for possession than could have been imposed upon someone convicted of delivery, a worse offense, and was thereby denied the equal protection of the law.” People v. Natoli (1979), 70 Ill. App. 3d 131, 139.

Defendants argue that the Natoli court correctly applied the equal protection clause to invalidate section 402(b), and rely on the reasoning in People v. McCabe (1971), 49 Ill. 2d 338. In McCabe, the defendant argued that it was a violation of equal protection to classify marijuana under the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22 — 1 et seq.) and to impose a mandatory 10-year-minimum sentence upon a first conviction for the sale of marijuana, rather than to classify it as a “stimulant or depressant” drug under the Drug Abuse Control Act (Ill. Rev. Stat. 1969, ch. 111½, par. 801 et seq.), which called for a maximum sentence of one year for the sale of such drugs. The equal protection analysis in McCabe was appropriate, since the basic premise of the defendant’s contention was that the nature and effects of the drugs named in the two statutes were so similar as to place those persons convicted of the sale of each in a “similarly situated” class. Consequently, the equal protection clause demanded that those “similarly situated” be treated equally under the law. This court agreed with that argument, concluded that marijuana cannot reasonably be distinguished from substances classified under the Drug Abuse Control Act, and found the disparity between the penalties violative of the equal protection clause. People v. McCabe (1971), 49 Ill. 2d 338, 347, 349-51.

The equal protection clause does not deny States the power to treat different classes of persons in different ways. (Eisenstadt v. Baird (1972), 405 U.S. 438, 446-47, 31 L. Ed. 2d 349, 358, 92 S. Ct. 1029, 1034-35; Skinner v. Oklahoma (1942), 316 U.S. 535, 540, 86 L. Ed. 1655, 1659, 62 S. Ct. 1110, 1113; Clark v. United States (N.D. Ill. 1978), 447 F. Supp. 172, 177.) Only “[w] hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and [penalizes] one and not the other” does the equal protection clause come into play. (Skinner v. Oklahoma (1942), 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1113. See United States v. Antelope (1977), 430 U.S. 641, 649, 51 L. Ed. 2d 701, 709, 97 S. Ct. 1395, 1400; United States ex rel. Pedrosa v. Sielaf (N.D. Ill. 1977), 434 F. Supp. 493, 497; People v. McCabe (1971), 49 Ill. 2d 338, 341.) That clause requires equality between groups of persons “similarly situated”; it does not require equality or proportionality of penalties for dissimilar conduct. McGowan v. Maryland (1961), 366 U.S. 420, 427, 6 L. Ed. 2d 393, 400, 81 S. Ct. 1101, 1105-06; People v. Nicholson (1948), 401 Ill. 546, 553.

The situation in Natoli differs from that in McCabe. In Natoli there was no disparate treatment of “similarly situated” classes of persons. There, the court failed to recognize that, under section 401 of the Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1401), all persons charged with the manufacture or delivery of a controlled substance are treated identically. Similarly, under section 402(b) (Ill. Rev. Stat. 1977, ch. 56½, par. 1402(b)), all persons charged with the possession of a controlled substance are treated alike. Therefore, the Natoli court was in error when it concluded that the equal protection clause had been violated.

Sub judice, then, no equal protection violation emerges, for one cannot claim that a defendant convicted of possession is similarly situated to one convicted of delivery. By the very definition of the offenses, those accused of one would be dissimilarly situated from those accused of the other. We conclude that section 402(b) of the Act does not violate the equal protection clause.

The challenged portion of the statute does, however, violate the due process clause of the Illinois Constitution. Ill. Const. 1970, art. I, sec. 2.

It is the general rule that the legislature, under the State’s police power, has wide discretion to prescribe penalties for defined offenses. (People v. Dixon (1948), 400 Ill. 449, 453.) The legislature’s power to fix penalties is, however, subject to the constitutional proscription which prohibits the deprivation of liberty without due process of law. (St. Louis, Iron Mountain, & Southern Ry. Co. v. Williams (1919), 251 U.S. 63, 66, 64 L. Ed. 139, 140-41, 40 S. Ct. 71, 73; Louisiana ex rel. Francis v. Resweber (1947), 329 U.S. 459, 468, 91 L. Ed. 422, 429, 67 S. Ct. 374, 378 (Frankfurter, J., concurring); Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 158-59.)

“We have consistently- stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.” (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.)

The test, thus, focuses on the purposes and objectives of the enactment in question.

In the present case, the purpose and objectives of the Illinois Controlled Substances Act are expressly set out in section 100:

“It is the intent of the General Assembly *** to provide a system of control over the distribution and use of controlled substances which will more effectively: *** penalize most heavily the illicit traffickers or profiteers of con-rolled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society ***.
It is not the intent of the General Assembly to treat the unlawful user or occasional petty distributor of controlled substances with the same severity as the large-scale, unlawful purveyors and traffickers of controlled substances.” Ill. Rev. Stat. 1977, ch. 5614, par. 1100.

Clearly, the legislature intended that those who traffic in and deliver drugs should be subject to more severe sentences than those who merely possess them. Because section 402(b) prescribes a greater sentence for possession of a schedule IV substance than section 401(e) sets forth for delivery of the same substance, section 402(b) is in contravention of the express intent of the legislature. Inasmuch as section 402(b), as it is applied to charges of possession of schedule IV substances, is not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public, it is violative of the due process clause of the Illinois Constitution and is, therefore, invalid.

The oversight was remedied by the legislature’s amendments of the Act on September 14, 1979 (Pub. Act 81 — 583, amending Ill. Rev. Stat. 1977, ch. 56½, pars. 1401, 1402). (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 353-54.) By the amendments, the legislature reduced the penalty provision for possession under section 402(b) from a Class 3 felony to a Class 4 felony, and increased the penalty for the manufacture or delivery of a schedule IV controlled substance from a Class 4 felony to a Class 3 felony. These amendments accurately reflect the intent of the legislature to punish traffickers more severely than the occasional user, unlike the earlier provision which we have found invalid.

Our conclusions with respect to schedule IV controlled substances do not apply to schedule II and III substances, contrary to the claim of defendants Novak and Olsen. The penalties for delivery of schedule II and III controlled substances are either greater than or equal to the penalty imposed for possession of those substances. (Ill. Rev. Stat. 1977, ch. 56V2, pars. 1401(b), (c), (d), 1402(b).) Consequently, these provisions are not contrary to the purposes of section 100 of the Act (Ill. Rev. Stat. 1977, ch. 5614, par. 1100) and do not offend due process. See Gaffney v. State (Tex. Crim. App. 1978), 575 S.W.2d 537, 541.

Defendants Novak and Olsen also assert that the trial court properly dismissed the possession charges against them because section 402(b) is invalid in its entirety and not solely in its application to schedule IV controlled substances. The test to determine severability is “whether the valid and invalid provisions of the Act are ‘so mutually “connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently ***”’” (Fiorito v. Jones (1968), 39 Ill. 2d 531, 540, quoting Winter v. Barrett (1933), 352 Ill. 441, 475.) Within the Act, the legislature divided controlled substances into distinct categories (schedules) and, in imposing penalties, dealt with each separately. This manifests the legislature’s intent that each schedule be mutually exclusive of the other. Consequently, a finding that section 402(b) is invalid as applied to schedule IV substances does not disturb the effectiveness of that provision as it relates to all other schedules.

Our conclusion as to the intent of the legislature is reinforced by reference to section 602 of the Act.

“If any provision of this Act or the application thereof to any person or circumstance is invalid, such invalidation shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.” Ill. Rev. Stat. 1977, ch. 56½, par. 1602.

Having found that section 402(b) of the Illinois Controlled Substances Act as applied to possession of schedule IV controlled substances violates the due process clause of the Illinois Constitution, the judgments of dismissal of the charges of possession of schedule IV substances against defendants Bradley, Dalzotto and Olsen, under section 402(b) of the Act, are affirmed. The judgments of dismissal of charges of possession of schedule II and III controlled substances against defendants Novak and Olsen under section 402(b) of the Act are reversed, and those causes are remanded for further proceedings.

52262 Judgment affirmed.

52263 Judgment reversed; cause remanded.

52411 — Judgment affirmed.

52814 Affirmed in part and reversed in part; cause remanded.

MR. JUSTICE RYAN,

concurring in part and dissenting in part:

I agree with the majority that the obvious mistake of the legislature in providing a more severe penalty for possession of a schedule IV controlled substance in section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 5614, par. 1402(b)) than is provided for the delivery of a similar controlled substance under section 401(e) (Ill. Rev. Stat. 1977, ch. 5614, par. 1401(e)) renders the penalty provided for the possession of a schedule IV controlled substance invalid. I do not agree, however, that the defendants charged with the offense of possession of a schedule IV controlled substance should be discharged.

The legislature has the inherent power, within constitutional limits, to define conduct which shall constitute a criminal offense and to fix the punishment for that conduct. (People ex rel. Kubala v. Kinney (1962), 25 Ill. 2d 491, 492; People v. Vraniak (1955), 5 Ill. 2d 384, 390.) The legislature has seen fit to make the possession of a schedule IV controlled substance a criminal offense. The majority has not found this determination to violate any constitutional prohibitions. It is only the penalty that the legislature has provided for this offense which the majority finds violative of the Constitution. The invalidity stems not from an equal protection violation or a violation of the proscription as to cruel and unusual punishment. But, as the majority notes, the invalidity stems from the fact that possession is a lesser included offense in the offense of delivery and therefore the punishment for possession should not be greater than that for delivery. The opinion of the court finds no constitutional invalidity as to schedule II or schedule III controlled substances because the penalties provided for delivery of those substances are either equal to or greater than the penalty provided for possession.

Since possession of a schedule IV controlled substance is a lesser included offense in the offense of delivery of a schedule IV controlled substance, I would reverse the orders dismissing the charges of possession of a schedule IV controlled substance and remand the causes to the trial courts with directions that, if convicted, the defendants be sentenced under the penalty provisions provided for delivery of a schedule IV controlled substance.

This court has long held that the holding of a part of an act unconstitutional does not necessarily render other parts of the same act invalid, if the unconstitutional part can be severed without affecting the remaining portions. (People ex rel. Bradley v. Illinois State Reformatory (1894), 148 Ill. 413, 425; People v. O’Brien (1916), 273 Ill. 485, 488; People v. Kennedy (1937), 367 Ill. 236, 240; People v. Nicks (1976), 62 Ill. 2d 350, 355.) The legislature has declared possession of a schedule IV controlled substance to be a criminal offense. There is no constitutional infirmity contained in such a declaration. The invalid penalty provision provided for such an offense does not affect the validity of that portion of the statute defining the offense. In People v. Natoli (1979), 70 Ill. App. 3d 131, 139, the case which the courts below followed in discharging the defendants, the appellate court stated that there is no right not to be sentenced for one’s crime. I agree and would hold that when a penalty provided for an offense is held to be invalid and there remains a statute under which one convicted of such an offense may be constitutionally sentenced, the conviction should not be reversed. The fact that the defendant may not have been charged under that particular statute has not been held to be a bar to such procedure.

In People v. Sinclair (1972), 387 Mich. 91, 194 N.W.2d 878, the Supreme Court of Michigan held invalid the penalties for possession and sale of marijuana. However, the majority of the court held that the defendant should not be discharged and stated that its decision would not mean that persons arrested for sale or possession of marijuana could not be prosecuted under the laws of the State of Michigan. The majority held that until the effective date of the new act providing less severe penalties for possession and sale of marijuana, prosecution must be under the penalty provisions relating to hallucinogenic drugs which the court found more closely resembled the properties of marijuana. People v. Sinclair (1972), 387 Mich. 91, 115, 194 N.W.2d 878.

In Roberts v. Louisiana (1976), 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001, the Supreme Court held invalid Louisiana’s mandatory death penalty statute relating to first degree murder and remanded the cause to the Supreme Court of Louisiana. Upon remand, the Louisiana Supreme Court, following its decision in State v. Jenkins (La. 1976), 340 So. 2d 157, set aside the death penalty and stated that the appropriate penalty is the most severe constitutional penalty established by the legislature for criminal homicide at the time the offense was committed. (State v. Roberts (La. 1976), 340 So. 2d 263.) In Jenkins, the court noted that previously, when that court had been required to resolve the question of sentencing a defendant validly convicted but unconsitutionally sentenced to death, the court had substituted life imprisonment as the appropriate sentence. However, at the time of the enactment of the mandatory death penalty statute for first degree murder, the legislature created the offense of second degree murder for which the penalty was more severe than a life imprisonment sentence. The new penalty for second degree murder contained certain restrictions on parole. The court found that to follow its previous practice and impose a life sentence for first degree murder would be imposing a lesser penalty for first degree murder than was required for second degree murder. The court thus held that the most severe constitutional penalty for homicide would be the appropriate penalty for first degree murder.

In People v. Boyer (1974), 24 Ill. App. 3d 671, rev’d on other grounds (1976), 63 Ill. 2d 433, the appellate court held the aggravated incest penalty invalid. Under the statute, incest was declared to be a Class 3 felony and aggravated incest was a Class 2 felony. Although the court held that penalty for aggravated incest invalid, it affirmed defendant’s conviction for aggravated incest as a Class 3 felony instead of a Class 2 felony as provided by statute. In the cases above cited the defendants were all sentenced under penalty provisions of statutes with which they had not been charged or convicted of violating.

The majority opinion holds the penalty provisions for possession of schedule II and schedule III controlled substances are not invalid because they are equal to or less than those provided for delivery of similar substances. There would thus be no due process violation involved in sentencing one convicted of possession of a schedule IV controlled substance under the penalty provision provided for the delivery of such a substance. Possession is a lesser offense included within the offense of delivery, and the sentencing judge could consider the relative seriousness of the offense in fixing the sentence within the range of the penalties provided. The legislature has declared possession of a controlled substance to be a felony, and the least serious penalty provided for a felony conviction is that provided for a Class 4 felony. Ill. Rev. Stat. 1977, ch. 38, par. 1005-5-l(b).

In keeping with my belief that only the penalty provided for possession of a schedule IV controlled substance is invalid, I would hold that defendant Bradley in cause No. 52262, defendant Dalzotto in cause No. 52411, and defendant Olsen in cause No. 52814, lacked standing to challenge the validity of the penalty provided for possession of a schedule IV controlled substance. No sentence had been imposed on these defendants. There would be no due process violation until a more severe sentence would be imposed for possession than for delivery. Since the charges against these defendants were dismissed prior to sentences being imposed, they had no standing to challenge the penalty provisions of the statute.

In summary, the legislature had the authority to define the conduct which constituted a criminal offense. It declared possession of a schedule IV controlled substance to be a criminal offense. The defendants were lawfully charged with possession of a schedule IV controlled substance. The invalid provision of section 402(b) of the Act, as it relates to possession of a schedule IV controlled substance, has never been applied. I would therefore vacate the orders of the trial courts dismissing the charges of possession of a schedule IV controlled substance against defendants Bradley, Dalzotto and Olsen, and remand the causes to the trial courts with directions to sentence Dalzotto, who has been convicted of possession of a schedule IV controlled substance, under the penalty provision provided for delivery of such a substance. The charges against Bradley and Olsen were dismissed before trial. I would therefore direct the trial courts to proceed to trial on the charges against these defendants and, if convicted of possession of a schedule IV controlled substance, to sentence the convicted defendant under the penalty provision provided for delivery of a similar substance. A person has no right not to be sentenced for the crime he has committed if there exists a valid penalty provision which can constitutionally be applied to his offense.


author: MR. JUSTICE RYAN

text:
    (No. 51821.
    YOUNGSTOWN SHEET & TUBE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (John Kristovic, Appellee).

      Opinion filed April 18, 1980.

    Rehearing denied May 29, 1980.

      Rooks, Pitts, Fullagar & Poust, of Chicago (Daniel P. Socha and Frank C. Rowland, of counsel), for appellant.
    Edward R. Vrdolyak, Ltd., of Chicago (Michael C. Brander, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal concerns the jurisdiction of the Illinois Industrial Commission over a claim filed under the Workmen’s Compensation Act for an injury sustained by an employee while working in Indiana. The arbitrator found there was no employment relationship subject to the provisions of the Illinois act and granted the employer’s motion to dismiss the application for adjustment of claim for lack of jurisdiction. The Industrial Commission reversed and remanded. On remand, the arbitrator entered an award under section 8(e) of the Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(e)). The award was affirmed by the Industrial Commission, and the Cook County circuit court confirmed. The employer, Youngstown Sheet & Tube Company (hereinafter Youngstown), appeals directly to this court under our Rule 302(a). (73 Ill. 2d R. 302(a).) The only issue before this court is whether the Illinois Industrial Commission had jurisdiction over the claim under the Illinois Workmen’s Compensation Act.

On July 11, 1951, John Kristovic, an Illinois resident and a member of local 1008 of the United Steelworkers of America, was employed as a patcher in the coke-ovens department at Youngstown’s South Chicago plant in Illinois. His responsibilities as a patcher included the brick work on the ovens. In February of 1961 the South Chicago plant was permanently shut down. Kristovic received a slip from Youngstown which was dated February 14, 1961, and was entitled “Notice of Change in Employment Status.” The slip indicated that he had been “laid off” due to a “reduction in force.” Kristovic looked for new employment. He also applied for, and received, unemployment compensation through the State of Illinois. Approximately three months later, Kristovic received a letter from Youngstown’s employment supervisor advising him to report for a job interview. He interviewed at the Indiana Harbor Works plant in Indiana and was hired on a quasi-probationary basis as a laborer in that plant. Kristovic underwent an employment medical examination, received a new employee identification number, filled out the necessary documents for the Indiana State income tax and joined local 1011 of the United Steelworker’s union in Indiana. Kristovic did not work in the coke-ovens department when he was first employed in Indiana. Instead, he worked as a laborer in the bridge shop. After a period of time, he was promoted from quasi-probationary to permanent status and was assigned to the coke-ovens department. Due to his “continuous service,” as defined in the United Steelworker’s contract, Kristovic retained his company seniority; that is, his pension and vacation rights were calculated back to the date of original hire in Illinois. He did not, however, retain his departmental or unit seniority. In September of 1975, however, a consent decree was entered by the United States district court against Youngstown, eight other steel companies, and the United Steelworkers of America which abolished the system of departmental seniority. Thus, by virtue of the consent decree, the employee’s seniority in the department pool was made to coincide with his total years of service with the company. Kristovic, therefore, gained seniority as a result of this decree in 1975.

At the time of the accident, Kristovic worked as a heater helper and had been employed at the Indiana plant almost 12 years. On April 8, 1973, while in the performance of his duties, Kristovic fell into a coke oven. Notice of the accident was filed with the State of Indiana in accordance with the Federal Occupational Safety and Health Act. Kristovic was unable to return to work until November 1, 1973. He received $63 per week for each week that he was unable to work. The payments were made by Youngstown pursuant to the compensation agreement between Youngstown and Kristovic entered into in accordance with the workmen’s compensation laws of Indiana.

On January 29, 1974, Kristovic filed an application for adjustment of claim with the Industrial Commission of Illinois. At the hearing before the arbitrator, counsel for Youngstown filed a motion to dismiss. The employer asserted that Illinois lacked jurisdiction to hear the merits of the claim since (1) Indiana had assumed jurisdiction and (2) the employment relationship was centered in Indiana. In support of its position, Youngstown offered into evidence, inter alia, the Indiana workmen’s compensation order governing Kristovic’s compensation payment and a certification from the chairman of the Indiana Industrial Board regarding the authenticity of said order. The certification stated that the order “represents that said Board has assumed jurisdiction over this matter.”

Kristovic, as an adverse witness, and Andy Kalapach, assistant supervisor for employment at Youngstown’s Indiana Harbor Works plant, testified for Youngstown at the arbitration hearing on the motion. In addition to the facts set forth above, Kalapach stated that Kristovic, as a “laid-off” employee, had no rights beyond those which were granted in the union contract. Kalapach stated that such rights were enforceable only in the event that he again became a permanent employee within two years after the layoff. Since Kristovic was absent from work for only three months and had again become a permanent employee of the company within two years, he retained his pension and vacation rights by virtue of the union contract. Kalapach further testified- that the management personnel of Youngstown had decided to offer available positions at the Indiana Harbor Works to qualified former South Chicago employees. However, since the South Chicago employees had no right to employment at the Indiana plant, Kalapach testified that such employees were not automatically hired. In order to obtain employment at the Youngstown Indiana Harbor Works plant, the prospective employee was first required to interview with a representative of the personnel office. If he was considered eligible for employment by said office, the prospective employee then proceeded to a department supervisor for an additional interview. This interview would be for a particular job which was available within that department. The department supervisor would then inform the personnel office as to his decision regarding the hiring. In a case where the department supervisor found the interviewee unacceptable for employment, there would be no hiring. Instead, the interviewee would be required to participate in further interviews with department supervisors until hired. If there were no other positions available within the departments, the person seeking employment was advised by the personnel department to keep in touch in the event that such vacancies did arise.

The sole question to be decided is whether Kristovic’s accidental injury falls within the coverage of the Illinois Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138 et seq.). The title of the Act reads, in pertinent part, as follows: “An Act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment within this State, and without this State where the contract of employment is made within this State ***.” The Act provides that an “employee” includes “[e] very person *** whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois ***.” (Ill. Rev. Stat. 1971, ch. 48, par. 138.1(b)(2).) It is apparent from a reading of the above that an out-of-State injury falls within the Act where the contract of employment was made in Illinois. (See M.W.M. Trucking Co. v. Industrial Com. (1976), 62 Ill. 2d 245, 254; Morris v. Industrial Com. (1973), 55 Ill. 2d 563, 564; Severin v. Industrial Com. (1936), 363 Ill. 217, 219.) (See generally, 4 Larson, Workmen’s Compensation sec. 87.11, at 16 — 48 to 16 — 49 (1979).) Thus, the place-of-contract test, as stated by the legislature, will be applied to the facts of this case.

It is the position of Youngstown that the employment contract governing the relationship of the parties at the time of the injury was made in Indiana. It is the employee’s position that the Illinois contract of employment continued to control the relationship of the parties. Kristovic contends that he was merely suspended from work and that the resumption of employment in Indiana stemmed from the original contract of hire entered into in Illinois. He asserts that his retention of seniority rights evidences the continuity of his employment. For the reasons stated herein, we find that the employment contract governing the relationship between Kristovic and Youngstown at the time of the accident was made within the State of Indiana and, therefore, that the Illinois Industrial Commission was without authority to enter an award under the Illinois Workmen’s Compensation Act.

Although Kristovic’s termination slip reflected that he was “laid off,” the situation was not a temporary cessation of employment with an expectation of eventual return. (See Conner v. Phoenix Steel Corp. (Del. 1969), 249 A.2d 866, 869.) Since the plant was permanently closed in 1961, there could not have been a resumption of employment. Kristovic’s conduct subsequent to the receipt of the termination slip reflected his recognition of the demise of the employment relationship at the South Chicago plant; he immediately applied for unemployment compensation and sought work elsewhere. While there is no dispute that Kristovic regained his seniority rights upon reemployment, this resumption of status arose only from the provisions of the union contract and the Federal consent decree. The union contract represents an agreement as to those terms that will govern the hiring, work and pay of the members of a union. (J.I. Case Co. v. National Labor Relations Board (1944), 321 U.S. 332, 334-35, 88 L. Ed. 762, 766, 64 S. Ct. 576, 578-79.) The contract between the United Steelworkers of America and Youngstown did not therefore constitute an employment contract for each individual employee hired thereunder. Likewise, mere evidence of the Federal consent decree fails to elucidate the time or place of the creation of the particular employment relationship. We note that the actual consent decree, which may have clarified this question, was not introduced into evidence. Thus, Kristovic failed to establish that he had a right to placement in the Indiana Harbor Works plant pursuant to the Illinois contract of employment. According to the uncontroverted testimony of Andy Kalapach, assistant supervisor for employment at the Indiana plant, Kristovic had no rights, subsequent to the South Chicago plant’s closure, beyond those which were granted in the union contract. He also testified that the provision regarding the retention of vacation and pension benefits was effective only upon the reestablishment of the employment relationship which had terminated with the closure of the South Chicago plant.

We further conclude that, subsequent to the termination of the employment relationship in Illinois, a new contract of employment was entered into in Indiana. In Kennedy-VanSaun Manufacturing & Engineering Corp. v. Industrial Com. (1934), 355 Ill. 519, an award was entered by the Illinois Industrial Commission against both a New York corporation and its Illinois subsidiary for the death of an Indiana resident. The deceased was originally hired by the New York corporation and was later transferred to the Illinois company. Both companies appealed, claiming, inter alia, that the Illinois Industrial Commission lacked jurisdiction over either corporation. This court found that the employee’s original contract of employment with the New York corporation was superseded by his transfer to the Illinois company. Accordingly, that part of the circuit court judgment confirming the award against the New York corporation was reversed and the portion of the judgment confirming the award against the Illinois company was upheld. For similar reasons, we conclude that Kristovic’s original contract of employment was superseded by his employment by Youngstown’s Indiana Harbor Works plant. This is not a case where Kristovic was sent to Indiana to perform some work for his Illinois employer on a temporary basis. He had worked permanently in Indiana for about 12 years. Also, this is not a case where an Illinois employer transferred Kristovic to its place of business in Indiana. This case involves a cessation of employment in Illinois and a reemployment in Indiana with certain carry-over benefits derived from the contract between the parent company and the labor union.

The long-established rule in Illinois governing the making of contracts is that the place where the last act necessary to give validity to the contract is done is the place where the contract is made. (Johnson v. Industrial Com. (1933), 352 Ill. 74, 76.) It is unnecessary for this court to make the technical determination of the last act necessary to give validity to the contract, since the totality of the arrangements for reemployment occurred in the State of Indiana: the necessary documents for employment were executed in Indiana; the services to be performed 'were in Indiana; Kristovic accepted the offer of employment in Indiana and he received benefits, such as workmen’s compensation, under Indiana law. Kristovic was required to participate in the interviewing procedure followed in the Indiana plant. He underwent a preliminary interview with the company and then interviewed with the department in which he sought employment. He also underwent a preemployment physical examination. Kristovic was, in fact, rehired and, as a new employee, he was given a new employee identification number. He also joined a different local of the union and filled out the requisite Indiana State tax documents. As noted above, he was not placed in a position comparable to that which he enjoyed at the South Chicago plant. Kristovic instead started as a laborer and did not have seniority beyond that which was granted pursuant to either the union contract or the Federal consent decree. The activities of the parties subsequent to the accident also indicate the propriety of Indiana jurisdiction over the claim. Notice of the accident was filed with the State of Indiana in compliance with the Federal Occupational Safety and Health Act, and for several months Kristovic received bimonthly payments under the Indiana workmen’s compensation laws. These payments, in addition to the certificate executed by the chairman of the Indiana Industrial Board, indicate that Indiana had assumed jurisdiction of this case. In view of all of the above, we find that Indiana was the forum in which the pertinent employment contract was made. Our jurisdictional finding seems particularly appropriate in a case such as this, where the employee has not even worked in the State in which he is seeking relief for over 12 years. We hold, therefore, that the Illinois Industrial Commission lacked jurisdiction over this claim.

Since we have found Illinois to be lacking jurisdiction in the first instance, it is unnecessary for this court to discuss the applicability of the full-faith-and-credit provision of the United States Constitution to the exclusivity provision contained in Indiana’s Workmen’s Compensation Act. (Ind. Code Ann., sec. 22 — 3—2—6 (Burns 1974), formerly sec. 40 — 1206.) Specifically, we need not determine the viability of the case of Cole v. Industrial Com. (1933), 353 Ill. 415, in view of subsequent United States Supreme Court decisions such as Carroll v. Lanza (1955), 349 U.S. 408, 99 L. Ed. 1183, 75 S. Ct. 804.

We conclude that the Industrial Commission of Illinois was without jurisdiction in this case. Therefore, the judgment of the circuit court of Cook County, confirming the Industrial Commission’s award, is reversed and the award is set aside.

Judgment reversed; award set aside.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52058.
    CHARLES JANSSEN, Appellant, v. THE CITY OF SPRINGFIELD, Appellee.

      Opinion filed March 28, 1980.

    Modified on denial of rehearing May 29, 1980.

      Brown, Hay & Stephens, of Springfield (Edward J. Cunningham, John H. Squires and Mark H. Ferguson, of counsel), for appellant.
    Robert M. Rogers, Assistant Corporation Counsel, of Springfield, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The plaintiff, Charles Janssen, obtained a personal injury judgment for $250,000 against the defendant, the city of Springfield, in the circuit court of Sangamon County. The appellate court reversed (69 Ill. App. 3d 986), and we granted leave to appeal.

The accident which underlies this litigation occurred at about 1:30 a.m. on August 26, 1973, as the plaintiff was proceeding southward on Fifth Street in Springfield. Fifth Street is a one-way three-lane highway which gradually curves to the east at the point where it intersects Stanford Avenue, an east-west route. The middle lane is 12 feet wide, and each of the outside lanes is 20 feet wide. On the east side of the intersection is a traffic island which projects feet into the east lane of Fifth Street. The plaintiff, who was driving southward in the eastern most lane on his motorcycle, struck this projection and was thrown from his motorcycle, sustaining serious injuries. At the time of the accident no warning signs or other road markings indicated that the roadway narrowed at the intersection. The following diagram shows the intersection.

Plaintiff’s complaint alleged that the city had been negligent in failing to remove the projecting portion of the traffic island, failing to warn motorists of the hazard of the intersection, and failing to adequately light the area. Evidence concerning the last allegation is not germane to this appeal because the jury, in response to a special interrogatory, found that the lighting was adequate, and the plaintiff does not now argue that this finding is against the manifest weight of the evidence. Nor does the defendant now contend that the condition of the intersection was not hazardous. The sole question is whether the city had a duty to remove the hazard or to warn of its existence. The city contends that this responsibility rested exclusively with the State of Illinois.

Evidence adduced at trial indicated that in 1958 the southern boundary of the city was the northern edge of Stanford Avenue, the intersection itself thus being outside the city limits. In that year the city and the State of Illinois entered into an agreement which, as subsequently amended, provided for the joint construction by the city and State of a 52-foot-wide pavement surface on Fifth Street from Broad Street on the north to the southern boundary of the city at Stanford Avenue. The agreement further provided that the State would pay the costs of the improvement except for preliminary design and engineering, traffic signals, 5% of the cost of an underpass below certain railroad tracks, and the outside 7 feet of pavement on each side of the road, which was to be used for parking. The city would pay these specified costs. The city and State further agreed that so long as Fifth Street was used as a State highway the State would maintain the center 24 feet of the pavement and the city would maintain the remainder. The joint construction plan did not extend beyond the northern line of Stanford Avenue and did not include the traffic island involved in this litigation. Other plans, approved and implemented exclusively by the State, continued the improvement south of the city limits, and these plans did include the traffic island.

After the construction was completed the city and State each year executed a maintenance contract under which the city agreed to provide necessary repairs, and cleaning and snow removal for the center 24 feet of the highway, and the State agreed to meet the expenses. In 1972 the city annexed an area south of the north line of Stanford Avenue, including the intersection.

Various State and city officials testified concerning their understanding of the powers and duties of the city and State under the agreements. This testimony revealed an additional oral understanding that the city would maintain the lane striping north of Stanford Avenue. Other evidence indicated the absence of a lane stripe separating the parking lanes from the traffic lanes. The officials further testified that the city could initiate the placement of signs or the marking of the pavement north of Stanford but needed the approval of the State to actually make any change. Other testimony indicated that the hazard could be reduced by posting warning signs on the traffic island itself and painting its curbing yellow, by painting parking stalls on the parking lane as it approached the intersection and covering the last few stalls with “hash marks,” and by posting “keep right” signs before the intersection.

A letter from a city official to a State official indicated that the city had notice of the dangers posed by the traffic island in 1964 and had requested the State to remedy it. The city did not produce any evidence of any subsequent attempts to remedy the situation. Shortly after the plaintiff’s accident the State removed the projecting portion of the island. The engineer whose department removed the projection testified that he did not know of any communication with the city before the repair, but that the immediate supervisor of the crew might have talked to city officials.

During the trial the plaintiff moved to amend his complaint to allege that the city had been negligent in failing to “cause” the projecting portion of the island to be removed, but the trial judge refused the amendment. The trial judge also refused the defendant’s motions for directed verdicts at the close of the plaintiff’s case and at the close of all the evidence. The theory of the motions for directed verdict had been that there was no proof that the city had jurisdiction and control over Fifth Street. The defendant also proposed special interrogatories requiring the jury to state whether it found that the city had jurisdiction and control over the intersection or over Fifth Street north of the intersection. The trial judge, however, refused to give the jury these special interrogatories. He also refused to instruct the jurors that the city had a statutory immunity from liability for failure to initially post regulatory traffic signs, but did give an instruction that the city had a statutory duty to warn motorists of dangerous conditions.

The jury returned a verdict of $250,000 in favor of the plaintiff. The defendant’s post-trial motion renewed its arguments for a directed verdict. In the alternative, the motion prayed for a new trial, citing numerous errors, among them the failure to give the special interrogatories and the instruction concerning immunity for failure to initially install regulatory signs.

Before the appellate court the city argued that the trial court had erred in not granting its motions for directed verdict and for judgment notwithstanding the verdict because the evidence failed to establish that the city had jurisdiction and control over either the intersection or the approach to the intersection. Defendant also argued alternatively for a new trial, citing the trial court’s failure to give the defendant’s instruction conceming regulatory signs. The appellate court did not reach the instructions question because it decided that the city did not have a duty either to alter the traffic island or to warn of its existence. The court concluded that the city had no duty to alter the traffic island because the island was not within the jurisdiction and control of the city. The court further concluded that the city had no duty to warn, even if it did have some jurisdiction and control over Fifth Street north of the intersection, because the court construed the relevant statutes to vest the responsibility for posting signs on Fifth Street exclusively with the State.

On appeal to this court the plaintiff argues that the city had a duty both to remove the projecting portion of the traffic island and to warn motorists of the hazard it presented. Plaintiff’s argument that the city had a duty to alter the traffic island rests upon section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 3 — 102(a)), which provides:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.”

Although this statute would impose a duty to alter the traffic island if the island were city property, nothing in the record indicates that the city owned Fifth Street south of the north line of Stanford Avenue. Furthermore, as the appellate court noted, nothing in the record indicates that the city had any jurisdiction or control over Fifth Street from the intersection southward. That part of Fifth Street is a State highway. The State planned it, constructed it and maintained it. After the accident the State removed the projecting portion of the island. In the absence of any evidence to indicate that the city had any control over the traffic island, the city was entitled to a directed verdict on the allegation that it was negligent in failing to alter the island. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494.

This conclusion, however, does not necessarily absolve the city of all responsibility. A governmental unit which controls a roadway has a duty to warn motorists of hazards adjacent to the roadway even if the hazard itself is not within the control of the governmental unit. (Mix v. City of Minneapolis (1945), 219 Minn. 389, 18 N.W.2d 130; cf. Birch v. Charleston Light, Heat & Power Co. (1903), 113 Ill. App. 229; City of Chicago v. Baker (1901), 95 Ill. App. 413, aff’d (1902), 195 Ill. 54; City of Rockford v. Russell (1881), 9 Ill. App. 229; City of Monmouth v. Sullivan (1881), 8 Ill. App. 50; Treon v. City of Hamilton (Mo. 1963), 363 S.W.2d 704; 63 C. J. S. Municipal Corporations sec. 822 (1950).) In Mix the city of Minneapolis ceded a parcel of land to the United States for use as a naval base. A city street approached and crossed over the boundary of the base and ascended a small rise a short distance past the boundary. While the base was being constructed a contractor excavated the area just past that rise. Although the city had vacated the portion of the street within the base and did not have the authority to remedy the hazard, the Minnesota Supreme Court held that the city could be found negligent for failing to warn motorists on the portion of the street controlled by the city of the approaching hazard. Similarly, in the case at hand, a hazard existed on the roadway in an area immediately past the southern limits of the city’s possible control. If the city did control Fifth Street north of the intersection, it had an obligation to warn motorists of that hazard.

The determination whether the city of Springfield had sufficient control over Fifth Street north of the intersection to create liability depends upon the construction of a complex statutory scheme and an interpretation of the agreements between the city and the State. The Illinois Highway Code allows the State to take over a city street and make it part of the State highway system. Section 4 — 203 of the Code (Ill. Rev. Stat. 1973, ch. 121, par. 4 — 203) provides:

“The Department may, in its discretion and as funds become available for construction and maintenance, add additional highways to the State highway system by laying out new highways or taking over highways from the county highway system, the township and district road system or the municipal street system ***. Before any such highway is taken over the Department shall notify the proper local officials in writing of its intention to do so and the date when it will assume the maintenance and care of such highway. Whenever any part or portion of any such highway which is situated within the corporate limits of any municipality is hereafter or has heretofore been taken over, the Department shall have exclusive jurisdiction and control over only that part of such highway which the Department has constructed, or which the local authority has constructed and which has been taken over by the Department, and for the maintenance of which the Department is responsible, including the hard-surfaced slab, shoulders and drainage ditches. Whenever any municipality shall construct with a durable hard surface the remaining portion of a street, a part of which has been improved with a durable hard surface by the Department, or taken over by it, then in that case the Department shall have jurisdiction and control over only that portion of the street over which it did construct the durable hard surface or that part which it took over from the municipality.”

Section 4 — 204 of the Illinois Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 4 — 204) requires the State to file a description of a highway it takes over with the Department of Transportion and also with the county clerk of each county through which the highway passes. Such a description, if it was filed, would indicate clearly the extent to which the State had taken over Fifth Street. Neither party, however, introduced those documents. Instead, the agreement between the city and State governing the construction of a concrete roadway over Fifth Street was introduced. That agreement specified that the State would maintain the center 24 feet of the road and the city would maintain the remaining 28 feet of the road surface. Subsequent annual agreements provided that the city would repair, clean and remove snow on the center 24 feet and that the State would reimburse the city for its expenses. Considering the construction agreement and the annual maintenance agreements, the jury could have reasonably concluded that the city had jurisdiction and control over the outer 28 feet of the road surface while the State had jurisdiction and control over the center 24 feet and subsequently contracted with the city for the provision of certain services on the State-controlled portion of the roadway. Such contracts are specifically authorized by section 4 — 406 of the Illinois Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 4 — 406).

The city contends, however, that even if it did have jurisdiction and control over a portion of the roadway north of Stanford Avenue, it did not have the authority to erect signs informing motorists of the approaching hazard. Section 11 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95V2, par. 11 — 303) provides:

“(a) The Department shall place and maintain such traffic-control devices, conforming to its manual and specifications on all highways under its jurisdiction as it shall deem necessary to indicate and to carry out the provisions of this Chapter or to regulate, warn or guide traffic.
(b) No local authority shall place or maintain any traffic-control device upon any highway under the jurisdiction of the Department except by the latter’s permission.
(c) The Department shall erect and maintain guide, warning and direction signs upon highways in cities, towns and villages of which portions or lanes of such highways are under the control and jurisdiction of the Department or for which the Department has maintenance responsibility.
** * »

Section 11 — 304 of the Code (Ill. Rev. Stat. 1973, ch. 95½, par. 11 — 304) further provides:

“Local authorities and road district highway commissioners in their respective maintenance jurisdiction shall place and maintain such traffic-control devices upon highways under their maintenance jurisdiction as are required to indicate and carry out the provisions of this Chapter, and local traffic ordinances or to regulate, warn, or guide traffic. All such traffic control devices shall conform to the State Manual and Specifications and shall be justified by traffic warrants stated in the Manual. ***”

The city contends that 11 — 303(c) vests responsibility for erecting signs with the State and that the city could not have placed any signs on Fifth Street north of Stanford Avenue without the concurrence of the State. The city concludes that it cannot be responsibile for failing to erect warning signs because it did not have the authority to do so. We cannot agree with the premise of this argument. Section 11 — 303(a) requires the State to erect signs and traffic signals on highways which are entirely under State control, and section 11 — 303(b) prohibits local governments from erecting any signs on such highways without State approval. Section 11 — 303(c) similarly obliges the State to erect guide, warning and direction signs on highways over the portion or lanes of which the State has jurisdiction. Section 11 — 303 does not, however, preclude local authorities from posting signs on those highways subject to mixed local and State jurisdiction. Moreover, section 11 — 304 of the Code (Ill. Rev. Stat. 1973, ch. 95½, par. 11 — 304) requires local authorities to post signs to regulate, warn and guide traffic on highways under their maintenance jurisdiction. The statute thus imposes an obligation on local authorities to warn motorists of those hazards which are incident to that portion of a highway which remains under local maintenance jurisdiction. The traffic island blocked the continuation of the outer part of Fifth Street and thus presented a hazard to motorists using a city-controlled part of the street.

Both the city and the appellate court found additional reasons for not imposing such a liability on the local authority. The appellate court reasoned that if the legislature had intended local authorities to bear responsibility for posting signs on highways subject to mixed jurisdiction it would have added language to section 11 — 304 explicitly creating that responsibility, as it did in regard to the State’s responsibility in section 11 — 303(c). The appellate court further considered that a contrary construction of the statutes, casting a responsibility on both the State and the local authority, would yield a system that is unworkable in practice. The court feared that such a divided responsibility could too easily degenerate into no responsibility at all when the State and the local authority cannot agree upon what signs to place on a highway subject to joint jurisdiction. The appellate court therefore concluded that sole responsibility must be vested in one entity and that, considering section 11 — 303(c), the State was the appropriate repository for that responsibility. 69 Ill. App. 3d 986.

The system of responsibility envisaged by the appellate court does have certain attractions. Our task, however, is to interpret the responsibilities already created by our legislature in existing statutes. Section 1 — 102 of the Illinois Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 1 — 102) provides in part:

“In view of the rapid growth of the State’s economy and increased use of public highways, the provision of safe and efficient highway transportation is a matter of public concern. It is the declared and continuous policy of the legislature to provide for improvement of highways and the highway tranportation system as well as the preservation of investment in highways. To that end it is intended to provide for integrated and systematic planning and orderly development in accordance with actual needs. It is further declared that the provision of such a system with efficient management, operation, and control, and the elimination of congestion, accident reduction, and safety is an urgent problem and proper objective of highway legislation. It is further declared that highway transportation system development requires the cooperation of State, county, township, and municipal highway agencies and coordination of their activities on a continuous and partnership basis and the legislature intends such cooperative relationships to accomplish this purpose. ” (Emphasis added.)

We believe that this section reveals a legislative intent that the State and local authorities cooperate in the management of highways in which both have an interest. The existence of section 4 — 203 of the Illinois Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 4 — 203) (set forth above), which allows the State and the local authority to each exercise jurisdiction over a part of the same roadway, reinforces that view. Consequently, we do not agree with the appellate court that the legislature considered the exercise of authority by both the State and a local government over the same highway to be unworkable.

Nor do we believe that the absence from section 11 — 304 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95½, par. 11 — 304) (set forth above) of specific language requiring the local government to place signs on a highway subject to divided jurisdiction implies that the legislature intended the State to have exclusive responsibility and authority for posting signs on such highways. Our courts have long recognized that, in the absence of an act by the State which divests a local government of jurisdiction over a highway, a local government has an obligation to maintain public highways within its boundaries in a safe condition. (Hanrahan v. City of Chicago (1919), 289 Ill. 400; City of Sterling v. Thomas (1871), 60 Ill. 264; Linneen v. City of Chicago (1941), 310 Ill. App. 274; Livestock National Bank v. Richardson (1939), 303 Ill. App. 445; Tapscott v. City of Chicago (1939), 301 Ill. App. 322.) Section 3 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 3 — 102) (quoted earlier herein) codifies that obligation. (Horton v. City of Ottawa (1976), 40 Ill. App. 3d 544.) Included therein is the duty to warn motorists of dangerous conditions (Allen v. McCalman (1923), 229 Ill. App. 221; Wells v. Village of Kenilworth (1923), 228 Ill. App. 332), which is codified in section 3 — 104(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 3 — 104(b)):

“(b) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to provide traffic warning signals, signs, markings or other devices unless such a signal, sign, marking or device was necessary to warn of a condition which endangered the safe movement of traffic, and which would not be reasonably apparent to or anticipated by a person in the exercise of due care.”

When the State takes over a portion of a city street, the statutes impose a duty on the State to post guide, warning and direction signs on that street, but they do not vest that duty exclusively with the State. (Ill. Rev. Stat. 1973, ch. 121, pars. 11 — 303, 11 — 304.) Although the State divests the city of responsibility for that portion of the street taken over by the State, the underlying obligation of the city to warn motorists of hazardous conditions affecting the street (Ill. Rev. Stat. 1973, ch. 85, par. 3 — 104(b)) remains unchanged in regard to that portion of the roadway not taken over. The city maintains in its petition for rehearing that the record contains no proof that Fifth Street was a city street when the 1958 agreement was executed. However, the additional statement of facts contained in the city’s brief recites that “Fifth Street *** became part of the State highway system as indicated in a construction agreement between the City and the State of Illinois adopted by Resolution on June 17, 1958 ***.” That Fifth Street was previously a city street, which seems implicit in the quoted statement, is a part of the foundation underlying the city’s position in this litigation from its inception. Had the fact been otherwise, it seems incredible that the issue would not have been raised at an earlier stage. Kunde v. Prentice (1928), 329 Ill. 82; Marchal v. Davis (1903), 206 Ill. 231; 5 C.J.S. Appeal and Error secs. 1343 to 1345 (1958).

The city also argues that the city and State engineers thought that the city could not place any signs on Fifth Street without the concurrence of the State. We have held, however, that the city does have the duty and authority to post signs warning motorists of hazardous conditions incident to that portion of the roadway still under the city’s jurisdiction. That legal duty is not limited by the interpretations cast upon it by State and city employees.

The instructions given the jury in this case allowed it to find the city liable on three separate grounds: failure to adequately light the area; failure to remove the projecting portion of the traffic island; or failure to warn motorists of the hazard presented by the island. The jury returned a general verdict against the city, but also indicated in response to a special interrogatory that the lighting was adequate. We have held that the evidence adduced at trial was not legally sufficient to enable the jury to find that the city had a duty to remove the projecting portion of the island. In certain circumstances this would entitle the city to a new trial. Section 68(4) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 68(4)) provides:

“(4) If several grounds of recovery are pleaded in support of the same demand, whether in the same or different counts, an entire verdict rendered for that demand shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.”

Even assuming that the city’s motion for a directed verdict satisfied the motion requirement and that its post-trial motion preserved the issue, two considerations preclude granting the city a new trial based on the factual insufficiency of one of the grounds for liability submitted to the jury. First, the city has waived this ground for a new trial by failing to argue it before this court. (73 Ill. 2d Rules 341(e)(7), 341(f)); People ex rel. Davis v. Chicago, Burlington & Quincy R.R. Co. (1971), 48 Ill. 2d 176; Flynn v. Vancil (1968), 41 Ill. 2d 236.) Secondly, we do not believe the city was prejudiced. The city has not argued that the condition of the intersection was not dangerous. Furthermore, the agreement concerning the construction of the roadway clearly indicated that the city had jurisdiction and control over all but the center 24 feet of the pavement north of Stanford Avenue. The city’s appeal in this case was based on legal rather than factual questions, and the city has not argued that the factual determinations necessary to create liability were against the manifest weight of the evidence.

Finally, the city argues that it is entitled to a new trial because the trial court refused to instruct the jury concerning section 3 — 104(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. St at. 1973, ch. 85, par. 3 — 104(a)), which provides:

“(a) Neither a local public entity nor a public employee is liable under this Act for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating signs.”

Several of the signs that witnesses suggested the city post to warn motorists of the dangerous intersection are classified as regulatory signs in the State’s “Manual of Uniform Traffic Control Devices for Streets and Highways.” The city argues that it was entitled to an instruction on section 3 — 104(a) because the jury could have found that the proposed measures to limit the dangers of the intersection were regulatory signs and that the city was therefore immune. We do not believe, however, that the denomination of a sign as a regulatory or warning sign in the State manual determines whether a particular sign is “necessary to warn of a condition which endangered the safe movement of traffic,” the standard which governs immunity under section 3 — 104(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 3 — 104(b)) (set forth earlier). (First National Bank v. City of Aurora (1976), 41 Ill. App. 3d 326.) The jury was adequately instructed concerning that standard, and we do not believe that additional instructions concerning section 3 — 104(a) were necessary.

We therefore reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court reversed; circuit court affirmed.