text:
    (No. 51225.
    THE PEOPLE ex rel. LEONARD MOSLEY, Petitioner, v. BERNARD CAREY, State’s Attorney, Respondent.

      Opinion filed Jan. 26, 1979.
    Rehearing denied March 30, 1979.

      James J. Doherty, Public Defender, of Chicago (John Thomas Moran, Assistant Public Defender, of counsel), for petitioner.
    Bernard Carey, State’s Attorney, of Chicago (Lee T. Hettinger and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for respondent.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

We allowed the motion of relator, Leonard Mosley, for leave to file in this court an original mandamus action pursuant to our Rule 381 (58 Ill. 2d R. 381). Relator had been indicted for murder by a Cook County grand jury, and, after numerous continuances, the case was called for trial on June 5, 1978. Selection of the jury and administration of their oath was completed on June 6. Before any evidence was presented on June 7, however, a mistrial was declared, and the writ of mandamus is now sought to bar the State’s Attorney of Cook County from reprosecuting relator. It is further urged that this court establish a mode of appeal which would permit an interlocutory review of a trial judge’s order denying dismissal of an indictment on double jeopardy grounds.

A detailed description of the context in which the mistrial was declared is necessary to an understanding of the issues. Following arguments and rulings on motions on the morning of June 7 and prior to opening statements, an assistant State’s Attorney brought to the attention of the judge the fact that an article concerning the trial had appeared in that morning’s Chicago Tribune. The article appeared under a headline indicating substantial delay had occurred between indictment and trial, and its text included information that two elderly prosecution witnesses had died prior to trial and related facts which could have provided a motive for the alleged crime. The assistant prosecutor moved to “voir dire” the jury to determine if any of the jurors had read the article and, if so, whether they would be biased. The defense, while objecting to the prosecutor’s motion as premature, charged that the prosecution was responsible for the appearance of the newspaper article, and that this constituted fundamental unfairness and a violation of due process. In support of this allegation, defense counsel sought a court order compelling the appearance of the Tribune reporter who wrote the article. The following exchange then took place:

“THE COURT: If you make a motion, perhaps I could address myself, but now you are on a fishing trip and I don’t know what you are driving at.
MR. MOORE [defense counsel]: Our motion is for a mistrial. Our motion is as to prosecutorial misconduct and fundamental unfairness.”

After the court indicated a desire to examine the jury to determine if the jurors had read the article and, if so, whether it had influenced them, defense counsel responded:

“Prior to that, we presently have a motion for a mistrial, your Honor, and ask that we present you with a written motion. I would, at this time, ask leave of court to file a motion to dismiss the indictment. ***”

The judge then called in the jurors and, addressing them as a group, asked: “How many of you read the Tribune this morning?” Receiving no response, the court again instructed the jurors not to read anything concerning the case in the newspaper. Defendant objected to the method of examination arguing that the jurors should have been questioned individually and moved for a mistrial on that basis. Finally, arguing that the examination of the jurors served to highlight the article and would encourage them to seek it out, the defense made its final motion for a mistrial in the following words: “At this time, Judge, I besiege [szc] you, please grant a mistrial.”

Later in the day, and during the hearing on the reporter’s motion to quash the subpoena requiring his presence, the assistant prosecutor admitted talking to the Tribune reporter and telling him about the deaths of the two elderly witnesses. Although defendant suggests that conversation resulted from a telephone call by the assistant to the reporter, there is nothing in the record before us corroborating that assertion, and the trial court apparently found to the contrary.

The court thereafter, in chambers with counsel present, examined each juror individually concerning his knowledge of the article, and each denied having read or seen it. The court did not inform the jurors of the content of the article but simply inquired whether they had heard about or read an article in the Tribune “about this case” or “about People v. Mosley.” Following argument on defendant’s written motion to dismiss the indictment because of the alleged prosecutorial misconduct, the court ruled as follows:

“There has been no evidence adduced before this Court to prove that the prosecutor, with malice aforethought, or deliberately gave information for the purpose of influencing the jury. However, it is the opinion of this Court that the conduct of the State’s Attorney was imprudent, to say the least. It is the duty of this Court to see that all defendants get a fair and impartial trial.
***
*** No evidence has been taken in this matter and the Court feels, in light of these facts, that the Court itself highlighted the article to the jury in the hope of seeking out whether or not the jury was influenced by the article.
The Court did highlight that article, but the fact that evidence had not been taken in this case and this case had not, in fact, started, the Court is going to declare a mistrial and will withdraw a juror.” ■

Defense counsel then objected to the mistrial declaration urging the court to sequester the jury as an alternative means of insuring the defendant a fair trial, a suggestion to which the prosecutor stated he had no objection. The court then inquired:

“Gentlemen, are you prepared to make your opening arguments? You realize this jury is going to be sequestered for days?
MR. CANNON [Assistant State’s Attorney]: Yes, Judge.
MR. MOORE: [Defense counsel] : Could we have five minutes before we go any further?”

Following a brief recess, defense counsel stated, “Judge, I believe that my objection was a bit premature and I will withdraw my objection to your Honor’s declaration to a mistrial. ***” A juror was thereafter excused, a mistrial declared and the case continued to the following day.

When the case was called the next day it became apparent that defendant intended to move for dismissal on double jeopardy grounds, and the case was again put over to the following day to permit preparation of the appropriate motions. On that day the following exchange took place with reference to the June 7 proceedings:

“THE COURT: *** After a prolonged day of argument, the Court reconsidered its position and reversed its position to the previous motion for mistrial made by the defendant, and the mistrial was granted.
MR. MOORE [Defense Counsel] : I object, your Honor. We never moved for mistrial on that point. Your Honor did that on your own motion.
THE COURT: *** The Court did not do it sua sponte. ***”

Defendant’s plea in bar of further prosecution was denied. The trial judge was persuaded, however, to certify the double jeopardy question to the appellate court for interlocutory review despite the fact that our Rule 308 (58 Ill. 2d R. 308) providing interlocutory appeals in civil cases under specified conditions is not one of the rules enumerated in Rule 612 (58 Ill. 2d R. 612) as applicable in criminal cases. That court denied the petition for leave to appeal and these proceedings followed.

The starting point in any double jeopardy analysis, of course, is determining whether or not jeopardy had attached. Since the jury was selected and sworn, it is clear that jeopardy had attached at the time the mistrial was declared. (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156; People v. Watson (1946), 394 Ill. 177; O’Donnell v. People (1906), 224 Ill. 218.) A second trial may still be permissible, however (Downum v. United States (1963), 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033; United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165), and it is necessary to examine the facts and circumstances of each particular case to determine the validity of a double jeopardy claim. (Illinois v. Somerville (1973) , 410 U.S. 458, 464, 35 L. Ed. 2d 425, 431, 93 S. Ct. 1066, 1070.) Of particular importance in this regard is whether the mistrial may fairly be said to have been attributable to defendant, for where a mistrial is declared upon defendant’s motion, a different analysis is applicable. The United States Supreme Court set out the standard in United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, as follows:

“[W] here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557.

We think it may be fairly said here that defendant sought or at least consented to the mistrial which the trial court ultimately declared, even though that mistrial occurred, at least in part, as a result of prosecutorial conduct which would have been better left undone. By so holding, however, we do not intend to condone the conduct of the assistant State’s Attorney in furnishing information to the reporter or the subsequent publication of the article, which could have prejudiced members of the jury who saw or read it. Were there in this record any support for the suggestion that the conversation with the reporter was initiated by the assistant prosecutor, our disapproval would take other forms. (People v. Butler (1974) , 58 Ill. 2d 45, 51-52.) The fact remains, however, that the article’s existence was called to the attention of the court by the State, and when the jurors were questioned individually and as a group none had seen, read or discussed the article. At that point it seems clear that defendant had not been prejudiced by the publication. Because of a fear that the disclosure of the article’s existence might, despite admonitions to the contrary, tempt jurors to seek it out or discuss it, the trial judge indicated his intention to declare a mistrial. After defendant suggested sequestering the jury, however, and the prosecutor indicated no objection to doing so, the trial judge appeared to reconsider his position as to a mistrial and to be willing to then proceed with the trial as demonstrated by his inquiry regarding counsel’s readiness to proceed with opening statements. It was at this point that defense counsel requested a recess, and, when court reconvened, indicated his objections to the declaration of a mistrial were “premature” and were being withdrawn. Defendant, in our judgment, clearly had his choice: he could either retain the original jury and have them sequestered if he thought that action necessary to insure fairness, or he could accept the declaration of a mistrial which would then entail the selection and swearing of a new jury. “It has been well stated that a defendant cannot by his own act avoid the jeopardy in which he stands and then assert it as a bar to subsequent jeopardy.” People v. Benson (1962), 24 Ill. 2d 159, 162.

The record also establishes the mistrial motions by defendant earlier in this opinion referred to. On four separate occasions defense counsel explicitly requested a mistrial due to either prosecutorial misconduct, fundamental unfairness, or improper inquiry of the jury. While it is not entirely clear from the record that the trial court judge acted upon all of these motions at the time they were made, there can be no doubt that the mistrial eventually declared was the relief requested by defendant on the earlier occasions.

We accordingly conclude that the mistrial may be said to have resulted from defendant’s repeated requests or, at the minimum, to have been declared with his consent. Consequently, the standard set forth in Jorn applies, and defendant’s double jeopardy plea was properly denied. People v. Handley (1972), 51 Ill. 2d 229, 235.

While our holding disposes of the double jeopardy issue in this case, defendant urges that language in several United States Supreme Court opinions, particularly Abney v. United States (1977), 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034, compels Illinois to provide a means of interlocutory appellate review of trial court denials of double jeopardy claims. Implicit in the arguments of both defendant and the State is recognition of the fact that Illinois does not now provide for pretrial review of denied double jeopardy claims as a matter of right. Our constitutionally guaranteed right of appeal embraces only appeals from “final judgments” (Ill. Const. 1970, art. VI, sec. 6; 58 Ill. 2d R. 301), and our cases have consistently defined that phrase in a manner which precludes review, as a matter of right, of denied double jeopardy claims prior to conviction and final judgment thereon. “To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment.” (Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48; see also People v. Miller (1966), 35 Ill. 2d 62, holding the denial of a motion to dismiss two counts of an indictment is not reviewable.) Defendant also attacks the validity of our system of review because we do provide interlocutory appeals on a discretionary basis in some civil matters, and of specific, narrowly limited trial court actions in criminal and juvenile cases. Defendant urges that the absence of provisions in the criminal appeals rules providing interlocutory appeals similar to those in civil cases violates equal protection and due process principles. Our rules (Rule 307 providing for interlocutory civil appeals as of right, Rule 308 concerning interlocutory civil appeals by permission, and Rule 604 relating to certain criminal appeals including- appeals by defendants from preconviction denial-of-bail orders (58 Ill. 2d Rules 307, 308, 604(c))) and our case law (People v. Martin (1977), 67 Ill. 2d 462) do permit interlocutory appeals in certain exceptional circumstances. We do not agree with defendant, however, that exclusion of double jeopardy claims from the orders as to which interlocutory review is afforded is constitutionally impermissible. Because double jeopardy claims occur more than occasionally, however, and because the broad appealability language of Abney is arguably mandatory, we believe defendant’s contentions merit discussion and resolution.

The Abney court addressed the narrow issue of “whether a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U.S.C. section 1291, and thus immediately appealable.” (431 U.S. 651, 653, 52 L. Ed. 2d 651, 655-56, 97 S. Ct. 2034, 2037.) That section embodies the Federal statutory provision conferring upon the United States Court of Appeals jurisdiction over “all final decisions” of the district courts in both criminal and civil actions. The court in Abney concluded that pretrial orders rejecting claims of double jeopardy are “final decisions” within the meaning of section 1291 and thus are immediately appealable.

We do not interpret Abney as holding its result to be constitutionally required by either the Federal double jeopardy provisions or due process principles. As the court in Abney explicitly recognized, “it is well settled that there is no constitutional right to an appeal” (431 U.S. 651, 656, 52 L. Ed. 2d 651, 657, 97 S. Ct. 2034, 2038), and “[t]he right of appeal, as we presently know it in criminal cases, is purely a creature of statute; in order to exercise that statutory right of appeal one must come within the terms of the applicable statute ***” (431 U.S. 651, 656, 52 L. Ed. 2d 651, 658, 97 S. Ct. 2034, 2039). Abney and the other United States Supreme Court cases relied on by defendant, including the post-Abney case of United States v. MacDonald (1978), 435 U.S. 850, 56 L. Ed. 2d 18, 98 S. Ct. 1547, interpreted a Federal statute which has no direct parallel in Illinois. Nor is the recent decision in Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156, helpful to defendant. That case held only that the Federal rule that jeopardy attaches when the jury is impaneled and sworn is an integral part of the constitutional guarantee against double jeopardy and is, therefore, binding on the States via the fourteenth amendment. Such was already the law of this State. Crist did not address the issue at hand, i.e., whether denial of a defendant’s motion to dismiss an indictment on double jeopardy grounds is or must be appealable.

Certain statements in the Abney opinion, when taken out of context, can be argued to mandate interlocutory review of denied double jeopardy claims, e.g.: “Finally, the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence” (431 U.S. 651, 660, 52 L. Ed. 2d 651, 660-61, 97 S. Ct. 2034, 2041) and “Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs” (431 U.S. 651, 662, 52 L. Ed. 2d 651, 662, 97 S. Ct. 2034, 2042). But when read in the context of the entire opinion, we do not consider Abney to invalidate a system such as ours which provides a discretionary review of denied double jeopardy claims rather than a review as of right.

We note the American Bar Association Standards Relating to the Administration of Criminal Justice do not suggest that an appeal as of right from denied double jeopardy claims is either necessary or desirable. Criminal Appeals Standard 21 — 1.3(b) states:

“In general, a defendant should not be permitted to take an appeal until a final judgment adverse to him has been entered in the trial court. Interlocutory review, in the discretion of the appellate court, should be available:
(i) to review trial court decisions denying claims of procedural rights that cannot be vindicated by appeals from final judgments. Included among such claimed rights are double jeopardy and bail pending trial.” (ABA Standards, Criminal Appeals, sec. 21 — 1.3(b) (1978).)

In fact, defendant concedes a permissive appeal, or a system pursuant to which frivolous appeals are summarily disposed of, would suffice.

A defendant in an Illinois criminal case who has a meritorious double jeopardy defense is not foreclosed from pretrial correction of a trial judge’s erroneous denial of a motion to dismiss. A motion under our Rule 381 (58 Ill. 2d R. 381) for leave to file an original petition for a writ of prohibition, mandamus, or perhaps even habeas corpus, as may be appropriate, accompanied by suggestions in support of the petition will receive the serious consideration of this court. As this case demonstrates, a motion with arguable merit will, in all likelihood, be allowed and the issue decided. The frivolous or nonmeritorious motion will be denied, a system similar to that suggested in Abney for coping with the dilatory appeals anticipated as a result of the court’s holding. (See 431 U.S. 651, 662 n.8, 52 L. Ed. 2d 651, 662 n.8, 97 S. Ct. 2037, 2042 n.8.) Too, our system protects adequately the interest of a defendant, emphasized in Abney, in avoiding the personal strain, public embarrassment and expense of a criminal trial more than once, as well as the “defendant’s ‘valued right to have his trial completed by a particular tribunal’ ” focused upon in Crist (437 U.S. 28, 36, 57 L. Ed. 2d 24, 31, 98 S. Ct. 2156, 2161).

We accordingly conclude that the Federal rule which considers denials of double jeopardy claims as final and appealable under the Federal statute is not “an integral part of the constitutional guarantee against double jeopardy” (Crist v. Bretz (1978), 437 U.S. 28, 38, 57 L. Ed. 2d 24, 33, 98 S. Ct. 2156, 2162) so as to make it binding on the States, nor do we believe our present system inadequate.

The petition for a writ of mandamus is accordingly denied.

Writ denied.


source: Caselaw Access Project

author: MR. JUSTICE. KLUCZYNSKI

license: Public Domain

text:
    (No. 50498.
    LANDFILL, INC., Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.

      Opinion filed Dec. 4, 1978.
    Opinion modified March 22, 1979.

      Kenneth J. Gumbiner and Richard V. Houpt, of Pedersen & Houpt, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (George William Wolff, Assistant Attorney General, and Dennis R. Fields, Special Assistant Attorney General, of counsel), for appellee the Pollution Control Board.
    Samuel T. Lawton, Jr., of Chicago, for appellees Palos Conservation Committee et al.

   MR. JUSTICE. KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Landfill, Inc. (Landfill), filed a complaint for declaratory judgment against defendant, the Pollution Control Board (Board), in the circuit court of Cook County, seeking a declaration that Rule 503(a) of the Board’s procedural rules was not authorized by the Environmental Protection Act (Act) (Ill. Rev. Stat. 1975, ch. 111½, pars. 1001 to 1051) and seeking an order enjoining the Board from conducting further proceedings under its Rule 503(a). The circuit court upheld the validity of Rule 503(a) and dismissed Landfill’s action. This court allowed Landfill’s motion for direct appeal under our Rule 302(b) (58 Ill. 2d R. 302(b)).

The complaint related that Landfill had filed an application for a sanitary landfill permit with the Environmental Protection Agency (Agency) in March of 1975. The Agency denied the application in October of 1975 until such time as Landfill supplied information relating to the land use and zoning of the site and surrounding area. Landfill appealed to the Board pursuant to section 40 of the Act (Ill. Rev. Stat. 1975, ch. 111½, par. 1040) from the denial of the permit. The Board ruled that Landfill was required to provide the information requested by the Agency. No determination on the merits of Landfill’s permit application was made by the Board. Landfill then submitted the required information to the Agency. The Agency held two days of public hearings at which interested third parties presented evidence and cross-examined Landfill’s witnesses. Thereafter on July 2, 1976, the Agency issued a development permit to Landfill.

Following the issuance of the permit, certain of the individuals and groups who had made their objections known to the Agency during the permitting process and who are intervenors in the instant proceedings, filed an application before the Board under Procedural Rule 503(a) and Solid Waste Regulation 205(j) seeking, inter alia, to revoke the permit on the ground it was issued by the Agency in violation of the Act. The intervenors filed their application before the Board in July of 1976. The Board entered an interim order in October of 1976 stating that the application was in the nature of an enforcement action, rather than in the nature of a review, and that third parties who were not required to participate in the Agency’s permit evaluation process were entitled to present new evidence to prove the violations alleged in their enforcement application.

After the Board issued its interim order, Landfill filed the instant action in the circuit court of Cook County wherein it challenged Rule 503(a). Landfill then filed a motion for preliminary injunction against the proceedings before the Board and for an expedited hearing on the complaint. On November 17, 1976, Judge Raymond Berg entered the preliminary injunction and ordered the Board to answer the complaint or otherwise plead on or before November 30, 1976, and to appear for further hearing on December 3, 1976. The hearing date of December 3, 1976, was continued to December 8, 1976, at which time Judge Berg entered an order on Landfill’s complaint holding that Rule 503(a) was void. On December 3, 1976, however, the Board had filed a notice of interlocutory appeal to the appellate court under our Rule 307(a)(1) (58 Ill. 2d R. 307(a)(1)). The appellate court affirmed the preliminary injunction. (52 Ill. App. 3d 154.) Thereafter the case was assigned to Judge Richard Curry of the circuit court of Cook County for further proceedings. On January 18, 1978, Judge Curry vacated the order that Judge Berg had entered after the Board had filed its notice of interlocutory appeal. On the same date Judge Curry held that the circuit court had jurisdiction to decide the issues raised in Landfill’s complaint and that Rule 503(a) and Rule 205(j) were authorized by the Act. He dismissed Landfill’s declaratory judgment action.

The Board and the intervenors raise the threshold question of whether the circuit court had jurisdiction to hear the declaratory judgment action filed by Landfill. They argue that Landfill has not exhausted its administrative remedies or complied with the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) and therefore is precluded from proceeding in circuit court to challenge the Board’s assertion of authority, under its Rule 503(a) and Rule 205(j), to hear third-party challenges to the allowance of permits. Under the applicable administrative procedures, judicial review lies only from final orders of the Board (Ill. Rev. Stat. 1975, ch. 111½, par. 1041; see Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill. 2d 31, 39-40). The Board and the intervenors argue that Landfill should have first submitted the issue to the Board; upon a Board ruling adverse to Landfill, it should have proceeded before the Board and then sought review in the appellate court under section 41 of the Act (Ill. Rev. Stat. 1975, ch. 111½, par. 1041), which expressly makes the Administrative Review Act applicable.

We hold, however, that exhaustion of administrative remedies is not required in this case. This court has held that where an administrative rule asserting administrative authority is challenged on its face as not authorized by the enabling legislation, exhaustion is not required. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548.) Exhaustion is not required where a statute or rule under which an administrative body purports to act is challenged as unauthorized, since the judicial determination will affect the jurisdiction of the administrative body in all matters, not only in the instant circumstances (see Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552).

The purposes for the exhaustion requirement are not served where an administrative assertion of authority to hear or determine certain matters is attacked on its face on the grounds that the assertion of jurisdiction is not authorized by statute. The rationale for the exhaustion doctrine is set forth in Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358:

“[T]he reasons for its existence are numerous: (1) it allows full development of the facts before the agency; (2) it allows the agency an opportunity to utilize its expertise; and (3) the aggrieved party may succeed before the agency, rendering judicial review unnecessary. 2 F. Cooper, State Administrative Law 572-574 (1965); L. Jaffe, Judicial Control of Administrative Action 424-426 (1965); 3 K. Davis, Administrative Law Treatise secs. 20.01-20.10 (1958), and 1970 Supplement at 642-669.”

Where an agency’s statutory authority to promulgate a rule and exercise jurisdiction is in issue, no questions of fact are involved. The agency’s particular expertise is not implicated in statutory construction. Further, there is virtually no chance the aggrieved party will succeed before an agency where the issue is the agency’s own assertion of authority. Cf. Van Laten v. City of Chicago (1963), 28 Ill. 2d 157, 159-60, and Herman v. Village of Hillside (1958), 15 Ill. 2d 396, 408, holding in the zoning context that exhaustion is not required before a declaratory judgment action may be filed where to seek further administrative action would be a useless act because the agency has already had occasion to express its opinion on the issue.

We conclude that where an administrative body’s assertion of jurisdiction is attacked on its face and in its entirety on the ground that it is not authorized by statute, exhaustion of administrative remedies and compliance with the Administrative Review Act is not required. Under these circumstances the judicial determination involves a question of law which will affect the jurisdiction of the administrative body in all cases and will hasten the administration of justice. The circuit court had jurisdiction to hear Landfill’s declaratory judgment action.

We reject also the Board’s argument that section 29 of the Act (Ill. Rev. Stat. 1975, ch. 111½, par. 1029) required Landfill to file its action in the appellate court rather than in the circuit court. That section provides:

“Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under Section 41 of this Act.”

Section 41 provides that judicial review lies directly to the appellate court. (Ill. Rev. Stat. 1975, ch. 111½, par. 1041.) Section 29 has been directed to pre-enforcement challenges to substantive regulations by persons adversely affected or threatened by the regulation. (See, e.g., Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503; Chamber of Commerce v. Pollution Control Board (1977), 49 Ill. App. 3d 954; see also D. Currie, Rule- making Under the Illinois Pollution Law, 42 U. Chi. L. Rev. 457, 473-74 (1975).) By contrast, Landfill is questioning the Board’s authority to proceed with a pending action under a challenged rule. Once the hearing has begun, the provisions of section 41, permitting administrative review to the appellate court only from final orders, become applicable. Under those circumstances, the exception to the exhaustion requirement applies.

Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill. 2d 31, upon which the Board and intervenors place primary reliance, is not controlling since it did not involve a facial attack upon the administrative body’s assertion of authority. Nor did it fall into any other exception to the exhaustion doctrine.

The Board’s contention, advanced for the first time on oral argument, that the action against the Board was barred by sovereign immunity, is also without merit. Landfill is not seeking to enforce a present claim against the State, but, rather, seeks a declaration that the Board is taking actions in excess of its delegated authority. Such an action does not contravene principles of sovereign immunity. See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548; see also Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 38.

We turn now to the substantive question of whether the Board had statutory authority to hear third-party challenges to permit-granting decisions by the Agency as asserted by the Board through its Rule 503(a) and Rule 205(j). Rule 503(a), in the form applicable at the time the intervenors filed their application before the Board, provided:

“Any person may file a complaint seeking revocation of a permit on the ground that it was improperly issued by the Agency, or seeking a cease-and-desist order against the activity described in the permit on the ground that it would cause a violation of the Act, of the Regulations, or a Board order. Such a complaint shall be commenced in accordance with Part III, and Part III of these Rules shall govern the proceeding.” (Illinois Pollution Control Board Procedural Rule 503(a), effective February 14, 1974.)

At the time Judge Curry made his determination, Rule 503(a) provided:

“Any person may file a complaint seeking revocation of a permit on the ground that it was issued by the Agency in violation of the Act, or the Regulations or of a Board Order, or seeking a cease-and-desist order against the activity described in the permit on the ground that it would cause a violation of the Act, or the Regulations, or of a Board order. Such a complaint shall be commenced in accordance with Procedural Rule 502(a). Part III of these Rules shall govern the proceedings.” (Illinois Pollution Control Board Procedural Rule 503(a), effective April 1, 1977.)

Rule 205(j) provides:

“Any person adversely affected by the issuance of a permit may petition the Board for a hearing before the Board to contest the issuance by the Agency.” (Illinois Pollution Control Board, Chapter 7: Solid Waste, Rule 205(j).)

All of Rule 205(j) and the first part of Rule 503(a), authorizing third parties to file permit-revocation proceedings on the grounds of Agency violation of the Act and the applicable regulations in granting the permit, are at issue here.

If the Board lacked statutory authority to promulgate Rule 503(a) and Rule 205(j), they are void. (See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 551; Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 506; City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 112-13.) In determining whether the Act justifies the Board’s assertion of authority, we must analyze the statutory language. See Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 507.

The Board, which was created by the Act (Ill. Rev. Stat. 1975, ch. 111½, par. 1005(a)), serves both quasi-legislative and quasi-judicial functions within a statutorily established framework. It must determine, define, and implement the environmental control standards and may adopt rules and regulations (Ill. Rev. Stat. 1975, ch. 111½, pars. 1005(b), 1026, 1027). It has authority to conduct hearings upon, among other specified matters, complaints charging violations of the Act or of regulations thereunder and upon petitions for review of the Agency’s denial of a permit as well as authority to hold other such hearings as may be provided by rule (Ill. Rev. Stat. 1975, ch. 111½, par. 1005(d)). It may adopt substantive regulations and procedural rules to accomplish the purposes of the Act (Ill. Rev. Stat. 1975, ch. 111½, pars. 1026, 1027).

The Agency too was created by the Act (Ill. Rev. Stat. 1975, ch. 111½, par. 1004(a)) and performs technical, licensing, and enforcement functions. It has the duty to collect and disseminate information, acquire technical data, and conduct experiments to carry out the purposes of the Act (HI. Rev. Stat. 1975, ch. 111½, par. 1004(b)). It has the authority to conduct surveillance and inspection of actual or potential pollution sources (Ill. Rev. Stat. 1975, ch. 111½, pars. 1004(c), (d)). It has the duty to investigate violations of the Act, regulations, and permits (Ill. Rev. Stat. 1975, ch. 111½, pars. 1004(e), 1030). The Agency must appear before the Board in hearings on the denial of permits, among other specified instances, and may appear in any other hearing under the Act (Ill. Rev. Stat. 1975, ch. 111½, par. 1004(f)). The Agency has the duty to administer permit systems established by the Act or-regulations and has the authority to require permit applicants to submit plans and specifications and reports regarding actual or potential violations of the Act, regulations or permits (Ill. Rev. Stat. 1975, ch. 111½, pars. 1004(g), (h)). The authority to administer the permit program has been held to be nondelegable. Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 410.

The Act contemplates the participation of private persons to effect the Act’s purpose of restoring, protecting and enhancing the quality of the environment (Ill. Rev. Stat. 1975, ch. 111½ pars. 1002(a)(v), (b)). An interaction of the roles of the Board, the Agency, and private persons occurs in the enforcement provisions of the Act. Section 30 requires the Agency to conduct investigations of alleged violations of the Act, rules, regulations, and permits upon the request of the Board or upon the receipt of information concerning such alleged violations (Ill. Rev. Stat. 1975, ch. 111½, par. 1030). Section 31(a) provides that the Agency shall file a detailed complaint and serve written notice upon alleged violators if the investigation discloses a violation. (Ill. Rev. Stat. 1975, ch. 111½, par. 1031(a).) Section 31(b) allows citizen complaints against violations and requires the Board to hold a hearing unless it determines the complaint is duplicitous or frivolous. (Ill. Rev. Stat. 1975, ch. 111½, par. 1031(b).) Section 31(c) places the burden on the Agency or other complainant to show that the respondent has threatened or caused air or water pollution or has violated or threatens to violate any provision of the Act or any rule, regulation or permit. Ill. Rev. Stat. 1975, ch. 111½, par. 1031(c).

The intervenors and the Board argue that section 31(b) authorized the Board to adopt Rule 503(a) and Rule 205 (j), and to hear challenges to permits on the grounds they were issued by the Agency in violation of its statutory duty to grant permits only upon proof by the applicant that the undertaking will not cause a violation of the Act (Ill. Rev. Stat. 1975, ch. 111½, par. 1039(a)). Specifically, the intervenors argue in their brief that the Agency failed to give adequate consideration to the suitability of the site and issued the permit without sufficient proof of site suitability in contravention of its duty under the Act and regulations. (See Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 415.) They also argue that the Agency issued the permit without sufficient proof that the landfill will not cause a violation of any of the substantive provisions of the Act or regulations with respect to air, water, noise and land pollution.

Section 31(b) authorizes any person to file a complaint with the Board against any person allegedly violating the Act or any rule or regulation thereunder. It is the position of the Board and the intervenors that the Agency is a person violating the Act when it allows a permit without complying with the provisions of the Act or the applicable rules and regulations.

This argument ignores the context in which section 31(b) is found. Sections 30 and 31(a) speak in terms of Agency investigation of violations. The focus must be upon polluters who are in violation of the substantive provisions of the Act, since it would be unreasonable to presume these provisions direct the Agency to investigate its own compliance with permit-granting procedures. Sections 31(b) and 31(c) authorize citizen participation in the complaint and hearing proceedings against alleged violations of the Act. This language merely gives force to the legislative declaration “that in order to alleviate the burden on enforcement agencies, to assure that all interests are given a full hearing, and to increase public participation in the task of protecting the environment, private as well as governmental remedies must be provided.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 111½, par. 1002(a)(v).) As David Currie, a principal draftsman of the Act and the first chairman of the Board, has noted, section 31(b) provides for citizen complaints as an additional safeguard against inadequate prosecutions. (Currie, Enforcement Under Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 451-52 (1975).) Prosecution under the Act, as already indicated, is against polluters, not the Agency.

The argument also ignores the statutory roles of the Board and the Agency in relation to permits. The Board’s principal function is to adopt regulations defining the requirements of the permit system (Ill. Rev. Stat. 1975, ch. 111½, pars. 1005(b), 1039). The Agency’s role is to determine whether specific applicants are entitled to permits (Ill. Rev. Stat. 1975, ch. 111½, par. 1039). The need for a technical staff capable of performing independent investigations dictates that the job of administering the permit system be entrusted to the Agency rather than the Board (Currie, Enforcement Under Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 475 n.427 (1975)). If the Board were to become involved as the overseer of the Agency’s decision-making process through evaluation of challenges to permits, it would become the permit-granting authority, a function not delegated to the Board by the Act.

The one statutory exception to the Board’s quasi-legislative role in relation to permits is in instances in which the Agency has denied a permit (Ill. Rev. Stat. 1975, ch. 111½, pars. 1005(d), 1040). Explicit procedural requisites are established for Board review of permit denials (Ill. Rev. Stat. 1975, ch. 111½, par. 1040), and Agency appearance at such permit-denial hearings is mandated (Ill. Rev. Stat. 1975, ch. 111½, par. 1004(f)). The Agency is also required to transmit to the applicant a detailed statement as to the reasons the permit application was denied (Ill. Rev. Stat. 1975, ch. 111½, par. 1039(a)). There are no comparable statutory provisions for Board review on either substantive or technical grounds of the Agency’s grant of a permit, thus indicating a legislative intent not to provide for such a proceeding. See City Savings Association v. International Guaranty & Insurance Co. (1959), 17 ½ 2d 609, 612, holding that the expression of one thing in an enactment excludes any other even though there are no negative words prohibiting it.

The intervenors attempt to distinguish a challenge to the allowance of a permit under Rule 503(a) and an appeal from the denial of a permit under section 40 on the grounds that the former is not a review but an enforcement proceeding at which additional evidence may be submitted. If the Rule 503(a) proceeding is not a review but a new determination of an applicant’s entitlement to a permit, it is clearly an unauthorized assumption by the Board of authority to grant permits delegated by the Act to the Agency. Whether the basis for the proceeding under Rule 503(a) is that the Agency failed to give adequate consideration to evidence or that the Agency erred by granting a permit on evidence inadequate to show that the landfill would not cause environmental damage, the result of a 503(a) proceeding is to make the Board the permit-granting authority, a usurpation of the Agency’s function. .

Rule 503(a) is more than a procedural rule; it is a rule asserting the power of the Board to entertain certain matters. If the asserted power is not authorized by the Act, the procedural nomenclature appended to the rule by the intervenors and the Board cannot save it.

The intervenors point also to the language in section 5(d) which, in addition to listing specific hearings which the Board has authority to conduct, including hearings to review permit denials, states that the Board may hold “such other hearings as may be provided by rule” (Ill. Rev. Stat. 1975, ch. 111½, par. 1005(d)). This general provision does not provide authority for an evaluation of the Agency’s decision-making process. Absent are any specific guidelines for the Board to use in entertaining such actions similar to those provided by the Act for challenges to permit denials. (See Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503.) The general statement following the list of specifically authorized hearings indicates a legislative intent only to permit similar proceedings. (See People ex rel. Myers v. Pennsylvania R.R. Co. (1960), 19 Ill. 2d 122, 129 (specific enactment is operative against general provision on the same subject); 34 Ill. L. & Prac. Statutes sec. 118 (1958).) A third-party challenge to the allowance of a permit is dissimilar to a hearing upon a permit applicant’s petition to review the Agency’s denial of a permit. Furthermore, to permit challenges to the aUowance of a permit before the Board undermines the statutory framework.

Finally, the Board argues that the allowance of a permit can impinge upon third parties’ constitutional rights to a healthful environment (Ill. Const. 1970, art. XI, secs. 1, 2) and can threaten property rights (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2). Therefore, the Board argues, third parties are entitled by due process to a hearing on the allowance of permits. In the instant case the intervenors did participate in the permit-issuance process, although the Act does not guaranty such participation. The constitutional argument is without merit in light of the statutorily established mechanism for persons not directly involved in the permit-application process to protect their interests without embroiling the Board in an examination of the Agency’s permit-granting procedure.

Section 31(b) authorizes citizen complaints against alleged violators of the Act, any Board rule or regulation, or Agency permit; it requires the Board to hold a hearing on all such complaints which are not “duplicitous or frivolous” (Ill. Rev. Stat. 1975, ch. 111½, par. 1031(b)). At that hearing, the complainant bears the burden of showing actual or threatened pollution or actual or threatened violations of any provisions of the Act, rules, regulations, or permits. (Ill. Rev. Stat. 1975, ch. 111½, par. 1031(c).) The grant of a permit does not insulate violators of the Act or give them a license to pollute; however, a citizen’s statutory remedy is a new complaint against the polluter, not an action before the Board challenging the Agency’s performance of its statutory duties in issuing a permit. As the principal draftsman of the Act has noted, “One receiving a permit for an activity that allegedly violates the law can be charged with causing or threatening to cause such a violation in a citizen complaint under section 31(b), and the regulations expressly provide that the existence of a permit is no defense to such a complaint.” (Emphasis added.) Currie, Enforcement Under Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 478 (1975).

In sum, a consideration of the terms of the Act reveals a statutory scheme under which the Agency has the function of issuing permits. The Board has authority to hold enforcement hearings only upon separate citizen or Agency complaints, not challenging the Agency’s performance of its duties but alleging that the activity contemplated causes or threatens pollution. We therefore conclude that Rule 503(a) and Rule 205(j) are unauthorized administrative extensions of the Board’s authority.

For the above reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded with directions to enter judgment for plaintiff, Landfill, Inc.

Reversed and remanded, with directions.


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE MORAN,

text:
    (No. 50661.
    THE PEOPLE ex rel. THE DIRECTOR OF FINANCE, Appellee, v. YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SPRINGFIELD et al., Appellants.

      Opinion filed Jan. 26, 1979.
    Rehearing denied March 30, 1979.

      MORAN, J., dissenting.
    Barber & Barber, of Springfield (Henry R. Barber, Carl O. Hoffee, and Richard C. Edwards, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Raymond L. Terrell, Special Assistant Attorney General, of counsel), for the People.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This is a condemnation action. The case is here on a certificate of importance from the Appellate Court, Fourth District (59 Ill. App. 3d 39), which reversed an order of the circuit court of Sangamon County denying a motion in limine by the State, petitioner for condemnation in this action. The appellate court also remanded the cause to the circuit court with directions, but no two of the three members of the appellate court panel were able to concur as to what the directions should be. Remaining members of the district had recused themselves, so the case could not be submitted to a new panel. ReaHzing that its mandate would cause the circuit court difficulty, the appellate court issued a certificate of importance, granting the condemnee, Young Women’s Christian Association of Springfield (YWCA), the right to appeal to this court as a matter of right (see Ill. Const. 1970, art. VI, sec. 4(c)).

The action was commenced by petition of the State to condemn land and a building owned by the condemnee in Springfield. The Capital Development Board of the State of Illinois, on whose behalf the petition was filed, is acquiring the necessary property rights for construction of a courts complex in Springfield on the block bounded by Capitol Avenue on the north, Jackson Street to the south, Fifth Street on the east, and Fourth Street on the west.

In the preliminary stages of the proceedings in the circuit court, the State filed a motion in limine, the purpose of which was to prohibit the condemnee from introducing evidence of replacement or reconstruction costs. Such evidence would be relevant if the building to be condemned were designated as special-use property. The basis of the State’s motion was that the building was not such special-use property, that the circuit court’s inquiry therefore should be directed to a determination of the fair market value of the building, and that the evidence should be limited accordingly. The condemnee urged that the cost of substitute facilities should control.

The circuit court ruled that the condemnee is entitled to compensation measured by the cost of substitute facilities. Under the ruling, depreciation of the condemned building would not be considered. In anticipation of an interlocutory appeal under Rule 308 (58 Ill. 2d R. 308), which was eventually allowed, the circuit court certified three questions to the appellate court:

“(1) Whether, under the evidence given at the hearing on the Motion and Answer thereto, the use and ownership of the property are such that the just compensation to be awarded for the taking of said property is the fair cash market value of the property at its highest and best use on the date of the filing of the Petition, or whether the fair cash market value is not the legal standard for determining just compensation because the property is of such nature and applied to such special use that it cannot have market value.
(2) Assuming that the property in question is of such a nature and applied to such special use that it cannot have a market value, whether the proper standard for determining just compensation is substitute facilities cost without regard to depreciation.
(3) Assuming that the property is subject to the special use rule and assuming that depreciation is not a proper factor to be considered in determining just compensation, whether the cost of substitute facilities should be based on cost of reproducing the existing facilities.” 59 Ill. App. 3d 39, 40.

The three members of the appellate court panel expressed varying opinions on these questions. Mr. Justice Webber felt that the condemned building was not of the special-use type, that fair market value should control as to both the land and building, and that the circuit court judgment therefore should be reversed and the cause remanded. Mr. Presiding Justice Green agreed to reverse and remand, but felt that fair market value would not adequately compensate the condemnee because of what he believed to be unique improvements made upon the building. He favored instead a measure of damages whereby the condemnee would receive fair market value for the land and, for the building, the cost of reproduction “minus the percentage of that cost determined to be the percentage of depreciation of the existing building.” (59 Ill. App. 3d 39, 47.) Mr. Justice Trapp voted to affirm the circuit court’s determination that the building was of a special use, that the cost of substitute facilities should control, and that depreciation should not be considered. He also expressed the view that the cost of replacing the existing building should not be the measure of compensation.

In its brief and argument in this court, the condemnee asks us to affirm the judgment of the circuit court and hold that the correct measure of compensation is the cost of substitute facilities. The State contends that fair market value should control or, alternatively, reproduction cost minus depreciation. The condemnee also argues that the appellate court should have affirmed the circuit court’s judgment because a majority of the members of the appellate court panel could not reach a decision on the issues presented. We address the latter, procedural question first because we find that it carries jurisdictional implications.

Section 5 of the judiciary article of our constitution provides that a majority of an appellate court division is necessary for a decision (Ill. Const. 1970, art. VI, sec. 5). The reference to “division” of the appellate court must be interpreted as meaning “panel,” traditionally consisting of three judges, since only three judges usually consider each case. (See 58 Ill. 2d R. 22.) Nonetheless, the votes of two of three judges are required for a decision, and this majority was not reached in this case on the vital issue of what the measure of compensation should be. A similar provision applies to judges of the supreme court, and in Perlman v. First National Bank (1975), 60 Ill. 2d 529, we held that an appeal should be dismissed when we are unable to obtain the constitutionally required majority vote. We pointed out that the effect of such a dismissal is the same as affirmance by an equally divided court of the decision under review. It is a conclusive determination of the - controversy, but is of no precedential value (60 Ill. 2d 529, 530). Relying on Perlman, the condemnee contends that the appellate court should have affirmed the judgment of the circuit court.

We agree that the appellate court should have affirmed the judgment of the circuit court and, in the exercise of our supervisory authority (see Ill. Const. 1970, art. VI, sec. 16), we direct the appellate court to affirm the judgments of the circuit court if again presented with this situation in which an appellate court panel cannot obtain the constitutionally required majority. Under Perlman the decision would have no precedential value. The appellate court’s failure to follow this course in the present case would cause us no difficulty were it not for the fact that the case is here on a certificate of importance, and the issuance of such a certificate presupposes a decision by the appellate court (Ill. Const. 1970, art. VI, sec. 4(c)). Because there was no decision by the appellate court in this case, a certificate of importance could not properly be issued. We do not feel, however, that this formal defect is fatal to our jurisdiction over the matter, as we choose to consider the brief of the State as a motion for direct appeal from the judgment of the circuit court (see 58 Ill. 2d R. 302(b)), allow the motion, and proceed to the merits.

The substantive issue in this appeal concerns the measure of value to be used in determining compensation to which the condemnee is entitled for the taking of its property in Springfield.

The building in question is a four-story brick structure built in 1913 and rehabilitated in 1950. The building includes an indoor swimming pool, gymnasium, locker rooms, chapel, meeting room and three kitchens. It has a high floor-loading capacity which allows any room to be used for various purposes. The rooms are also said to be “expandable.”

According to the testimony of Richard Stockbarger, an architect and president of the board of trustees of the YWCA, the building was specially designed for the YWCA and well adapted for its programs. To a similar effect is the affidavit of Earl C. Worthington, the architect responsible for the 1950 rehabilitation of the building. The basis of the testimony of Stockbarger, who as an architect is experienced in the design of similar structures such as school buildings, was his examination of the building plans, the high floor-loading capacity of the building, and improvements such as the pool and gymnasium. Mr. Stockbarger also testified that a regular maintenance program was in effect, and that the building is in as good a condition as it was following its rehabilitation in 1950, but that there may have been 10 to 15% depreciation. When asked for his opinion of the useful life of the structure, he stated that it would be adequate for the needs of the YWCA for at least 100 years.

The circuit court also heard the testimony of Carolyn Coffman, executive director of the Springfield YWCA. Mrs. Coffman has 14 years of experience with the YWCA organization, including 5 years with the Springfield chapter, and has visited and become familiar with the organization’s buildings across the nation, particularly in Illinois and Indiana. She testified that she knew of no open market sale of a structure similar to that owned by the Springfield YWCA. It is because of this alleged absence of a market that the YWCA contends that fair market value is an inadequate measure of compensation.

Mrs. Coffman also testified that membership in the Springfield YWCA is now at least 50% greater than in 1950, but that careful planning and space allocation have enabled the directors to quite adequately accommodate its programs. She further testified that any new building, if constructed, would be sufficient if it contained similar facilities, and said, “We’d be very happy if they [the State] would build us another building exactly like it.” She was of the opinion that compensation in an amount less than the cost of substitute facilities would jeopardize the YWCA functions. According to an estimate received from the Evans Construction Company, the construction cost of substitute facilities is $1,611,000. The cost of land, architect’s fees, and other expenses is not included. The State, presumably relying on its fair market value theory, has offered $650,000 for the land and building.

In the usual case, fair market value is a legally sufficient measure of compensation. This has been recognized by both the legislature and the courts. Our condemnation statute provides:

“Except as to property designated as possessing a special use, the fair cash market value of property in a proceeding in eminent domain shall be the amount of money which a purchaser, willing but not obligated to buy the property, would pay to an owner willing but not obliged to sell in a voluntary sale, which such amount of money shall be determined and ascertained as of the date of filing the petition to condemn. ***” (Ill. Rev. Stat. 1975, ch. 47, par. 9.7.)

Few Illinois cases have found condemned properties to be of a special use and it has been said that such a finding is proper “only when property has special capabilities which make it unmarketable at its true value due to unique improvements ***.” (Housing Authority v. Kosydor (1959), 17 Ill. 2d 602, 606; see also Peoples Gas Light & Coke Co. v. Buckles (1962), 24 Ill. 2d 520, 531-32.) In Lake Shore & Michigan Southern Ry. Co. v. Chicago & Western Indiana R.R. Co. (1881), 100 Ill. 21, 33, for example, the court found a railroad transfer station to be of a special use and held that a special use designation is proper when the property in question is “not available for use for general and ordinary purposes” and has no “market value as such property.”

Our consideration of the present case leads us to conclude that the property of the condemnee is not of a special use. We do not believe that the improvements to the building are of such a unique nature as to render use of the fair market standard unjust or determination of market value impossible. The State has pointed out accurately that various buildings have improvements such as a swimming pool, gymnasium and meeting rooms. Evidence of open market cash sales of buildings with such similar improvements may be used to establish fair market value of the property of the condemnee, provided, of course, that the State first establish similarity in material respects, such as locality, character, time, proximity, market conditions, improvements, and mode of payment, which should be cash. (Forest Preserve District v. Lehmann Estate, Inc. (1944), 388 Ill. 416, 428-29; Forest Preserve District v. Collins (1932), 348 Ill. 477, 479-80, 481; Forest Preserve District v. Barchard (1920), 293 Ill. 556, 563; see, e.g., City of Chicago v. Harbecke (1951), 409 Ill. 425, 430-32 (proximity; character); Forest Preserve District v. Lehmann Estate, Inc. (1944), 388 Ill. 416, 427-29 (proximity); Forest Preserve District v. Draper (1944), 387 Ill. 149, 156-57 (character; improvements); Forest Preserve District v. Kean (1921), 298 Ill. 37, 47-49 (proximity; market conditions).) Evidence should not be excluded because of minor differences, however, if the trial judge determines that that the evidence would assist the jury. (Forest Preserve District v. Draper (1944), 387 Ill. 149, 156-57; Forest Preserve District v. Barchard (1920), 293 Ill. 556, 563.) Differences, of course, may be emphasized and explained to the jury. These matters are to be resolved by the trial judge in the exercise of his sound discretion. (Forest Preserve District v. Kean (1921), 298 Ill. 37, 48.) We note, too, that other methods of proof maybe utilized if it is determined that they are applicable. (See Note, Methods of Establishing “Just Compensation” in Eminent Domain Proceedings in Illinois: A Symposium, 1957 U. Ill. L.F. 289, 291-95.) This court has approved of various methods of valuation if the proper circumstances are present. (See, e.g., Department of Transportation v. Quincy Coach House, Inc. (1976), 64 Ill. 2d 350, 360-61.) We express no view on the applicability of any other valuation method, but merely point out that they may be appropriate.

Our belief that the property in question is not of a special use is also confirmed by a comparison of the present case with prior decisions of this court. We do not find that the YWCA building is unique, as were properties labeled “special use” in other cases. (See, e.g., Sanitary District v. Pittsburgh, Ft. Wayne & Chicago Ry. Co. (1905), 216 Ill. 575 (railroad terminal); Chicago & Northwestern Ry. Co. v. Chicago & Evanston Ry. Co. (1884), 112 Ill. 589 (railroad terminal); Lake Shore & Michigan Southern Ry. Co. v. Chicago & Western Indiana R.R. Co. (1881), 100 Ill. 21 (railroad terminal); see also Forest Preserve District v. Hahn (1930), 341 Ill. 599 (picnic facility and roadhouse not a special use); Kankakee Park District v. Heidenreich (1927), 328 Ill. 198 (meat-packing plant not a special use); River Park District v. Brand (1927), 327 Ill. 294 (picnic grove and amusement park not a special use); City of Chicago v. Farwell (1918), 286 Ill. 415 (soap factory not a special use).) The basis of the railroad cases, for example, is the finding that the terminals were an integral part of the railroad system (see, e.g., Sanitary District v. Pittsburgh, Ft. Wayne & Chicago Ry. Co. (1905), 216 Ill. 575, 583; Chicago & Northwestern Ry. Co. v. Chicago & Evanston Ry. Co. (1884), 112 Ill. 589, 606-07) or specially adapted to railroad purposes (Lake Shore & Michigan Southern Ry. Co. v. Chicago & Western Indiana R.R. Co. (1881), 100 Ill. 21, 33) and therefore of special use to the railroads. We find no such special circumstances present here.

We are also not persuaded by the condemnee’s argument that we should adopt the rule set forth in the so-called “Lutheran Synod Cases” (United States v. 564.54 Acres (3d Cir. 1978), 576 F.2d 983, and (3d Cir. 1974), 506 F.2d 796). In these cases it was held that the government, as condemnor, is obligated to compensate a condemnee according to the substitute-facilities measure of compensation if the condemnee is a private, non-profit organization and its functions are reasonably necessary to the community. No Illinois case has gone so far (see County of Cook v. City of Chicago (1967), 84 Ill. App. 2d 301, 306-07 (public school system entitled to compensation. according to substitute facilities measure to ensure replacement of condemned school facilities and fulfillment of legal obligation to the public), and we do not feel that the rule is either sound or constitutionally required. The purpose of the just-compensation provisions of the Federal and Illinois constitutions is to place the condemnee in the same financial condition as if he retained ownership. (City of Chicago v. Koff (1930), 341 Ill. 520, 527.) Their purpose is not to improve the condemnee’s status (Department of Public Works & Buildings v. Hubbard (1936), 363 Ill. 99, 103) as would occur if the substitute-facilities measure were adopted and elements such as market value and depreciation were not primary points of inquiry.

Having determined that the property is not of a special use, we need not address the special use valuation issues raised by the parties. Fair market value will be the measure of damages.

The judgment of the circuit court of Sangamon County is reversed and the cause is remanded to that court.

Reversed and remanded.

MR. JUSTICE MORAN,

dissenting:

The trial court, under Rule 308 (58 Ill. 2d R. 308), certified to the appellate court the question of the proper measure of damages in a case before it. Each member of the appellate panel rendered different answers to the question certified, thereby leaving the trial court in a quandary, its problem unresolved.

Article VI, section 5, of the Constitution establishes and sets forth the organization of the Appellate Court of Illinois. Section 5, in part, provides:

“Each Appellate division shall have at least three Judges. *** A majority of a division constitutes a quorum and the concurrence of a majority of the division is necessary for a decision. ” (Emphasis added.)

Section 4(c) provides, in part, for appeals from the appellate court to this court as a matter of right, “if a division of the Appellate Court certifies that a case decided by it involves a question of such importance that the case should be decided by the Supreme Court.” (Emphasis added.)

Admitting that the above provisions were not followed, the majority opines “that this formal defect is [not] fatal to our jurisdiction over the matter. ” (74 Ill. 2d at 567.) The majority, then, by legal gymnastics, treated the answering brief of the appellee, the State, as a motion for a direct appeal under Rule 302(b) (58 Ill. 2d R. 302(b)). By doing so, the court, despite its admonition, has set an untoward precedent.

It is my feeling that this case should be remanded to the appellate court with the instruction that, before issuing a certificate of importance, that court, in accordance with the constitutional requirement, decide the question presented and that, in the event a majority of the panel is unable to agree, the judgment of the trial court be affirmed. Either result would allow the aggrieved party to petition this court for leave to appeal.


author: MR. JUSTICE WARD

text:
    (No. 50639.
    THE SERBIAN EASTERN ORTHODOX DIOCESE FOR THE UNITED STATES OF AMERICA AND CANADA et al., Appellees, v. DIONISIJE MILIVOJEVICH et al., Appellants.

      Opinion filed Jan. 12, 1979.
    Rehearing denied March 30, 1979.

      MORAN and KLUCZYNSKI, JJ., took no part.
    Leo J. Sullivan III, Richard J. Smith, and Michael K. Noonan, of Sullivan, Smith & Hauser, Ltd., of Waukegan, and Jerome H. Torshen, of Chicago, for appellants.
    Albert E. Jenner, Jr., Keith F. Bode, Robert L. Graham, Leland J. Badger, and Eugene R. Wedoff, of Jenner & Block, of Chicago, Thomas J. Karacic, of Katz, Karacic & Helmin, of Chicago, and Henry D. Fisher, of Hall, Meyer, Fisher, Holmberg, Snook 8c May, of Waukegan, for appellees.
   MR. JUSTICE WARD

delivered the opinion of the court:

This appeal is the sequel to an earlier appeal in this case reported at 60 Ill. 2d 477 (1975), rev’d, 426 U.S. 696, 49 L. Ed. 2d 151, 96 S. Ct. 2372 (1976). The plaintiffs are the Serbian Eastern Orthodox Diocese for the United States of America and Canada, the religious body of the Serbian Eastern Orthodox Church in this country (“American-Canadian Diocese”), and Bishops Firmilian Ocokoljich, (“Firmilian”), Gregory Udicki and Sava Vukovich. The defendants, who are the appellants here, are former Bishop Dionisije Milivojevich (“Dionisije”), the Serbian Eastern Orthodox Diocese for the United States of America and Canada, a corporation organized in 1937 under the provisions of the Illinois act relating to religious corporations (Ill. Rev. Stat. 1937, ch. 32, pars. 164 to 188), referred to in this opinion as the “religious corporation,” and the Serbian Eastern Orthodox Monastery of the St. Sava, a corporation organized in 1945 under the provisions of the Illinois General Not for Profit Corporation Act (Ill. Rev. Stat. 1945, ch. 32, pars. 163a to 163al00), referred to as the “monastery corporation.”

This litigation had its origin on May 10, 1963, when the Holy Synod of the Serbian Orthodox Church suspended Dionisije, the then bishop of the American-Canadian Diocese. On July 23 the Holy Assembly of the Serbian church removed Dionisije from office, and on March 5, 1974, the Assembly unfrocked him. At the time when Bishop Dionisije was suspended from office the Holy Synod appointed Firmilian as administrator of the Diocese. At the same time, the Holy Assembly dissolved the American-Canadian Diocese and replaced it with three new dioceses. With Dionisije’s suspension Firmilian was also made administrator of one of the new dioceses, and when Dionisije was removed, Firmilian became its bishop. Administrators, and later bishops, were also named for the other two new dioceses.

On July 26, 1963, a complaint was filed in the circuit court of Lake County against Firmilian in the names of the religious corporation and the monastery corporation seeking to enjoin interference with the affairs and the assets of these corporations. Thereafter, on October 14, 1963, Firmilian and the other plaintiffs brought suit against Dionisije seeldng to enjoin him from assuming or retaining control of the property belonging to the religious corporation or to the monastery corporation, and to direct him to turn over to the plaintiffs all assets of the two corporations. Each case involved the same issues regarding the control of the Diocese and its property, and they were consolidated. As noted previously, Firmilian and his adherents are denominated here as the plaintiffs, and Dionisije and his supporters are referred to as the defendants.

After a bench trial the circuit court held that the suspension, removal, and unfrocking of Bishop Dionisije were valid, but that the reorganization of the Diocese was not. On direct appeal this court affirmed the latter part of the judgment, but reversed as to Dionisije’s removal and defrockment, which we held improper because done in violation of the prescribed procedures of the Serbian Church (60 Ill. 2d 477, 501-03). As to Dionisije’s suspension we held that it was no longer effective since he had not been tried within a year of his ecclesiastical indictment as required by church law.

The Supreme Court of the United States in turn reversed with regard to the suspension and the removal of Dionisije because our decision was considered as undertaking to resolve “religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals of this hierarchical church” (426 U.S. 696, 720, 49 L. Ed. 2d 151, 169, 96 S. Ct. 2372, 2385). Following the remand of the cause to us for further proceedings, we reversed the judgment, in part. (66 Ill. 2d 469 (1977).) Thereafter, on February 22, 1978, the circuit court entered a final judgment in favor of the plaintiffs, and the defendants filed a notice of appeal. A direct appeal to this court was allowed pursuant to Rule 302(b) (58 Ill. 2d R. 302(b)). At the same time we stayed the force of the judgment and suspended its enforcement.

Our mandate to the circuit court stated that the judgment of that court should be affirmed insofar as it held that Bishop Dionisije had been properly removed as bishop of the American-Canadian Diocese, but that that part of the judgment which held the reorganization of the American-Canadian Diocese to have been invalid should be reversed. We are satisfied that the judgment entered by the circuit court on remand conformed to the mandate of this court and to that of the United States Supreme Court with respect to the suspension and removal of Dionisije and the reorganization of the Diocese. That being so, it is not open to the defendants as appellants to raise questions which were or could have been raised on the former appeal. People v. National Builders Bank (1957), 12 Ill. 2d 473, 474, 476; People ex rel. Maeras v. Chicago, Burlington & Quincy R.R. Co. (1967), 36 Ill. 2d 585, 586, cert. denied (1967), 389 U.S. 427, 19 L. Ed. 2d 655, 88 S. Ct. 578.

The defendants complain that the circuit court went beyond the terms of the mandate, however, and exceeded its jurisdiction, in that it required two foreign corporations affiliated with the Diocese to turn over their assets to the plaintiffs even though these corporations were not served with process, were not named as parties, and did not appear in the suit. One of these corporations is the St. Sava Church and Educational Mission of the Serbian Eastern Orthodox Diocese for the United States and Canada, a not-for-profit corporation organized by Dionisije under the laws of California in May 1962 while he was still bishop of the Diocese. The corporation holds legal title to about 170 acres of land near Jackson, California, acquired from the IlHnois religious corporation in December 1962.

The other corporation is the St. Sava Home, a Pennsylvania not-for-profit corporation organized by Dionisije in 1966, after the present litigation had begun. In 1969 Dionisije caused to be transferred to the St. Sava Home title to 18 acres out of a tract of 1,200 acres near Shadeland, Pennsylvania, which the Illinois religious corporation had acquired in 1951. A tract of some 230 acres in Libertyville, Illinois, originaUy owned by the Illinois religious corporation, was transferred by it to the Illinois monastery corporation in 1945. Since the monastery corporation is a party to this suit, however, the defendants raise no question as to the court’s jurisdiction to enter judgment against it.

The ordering portion of the judgment does not in terms direct either the California or the Pennsylvania corporation to turn over assets to the plaintiffs. The defendants argue, however, that these corporations fall within the following language appearing in paragraph 6 of the judgment:

“Defendants and each of them, and all persons, firms, corporations and entities who have acted or who are acting under, with, or pursuant to their order or direction or in concert with them, *** are further ordered to relinquish and turn over control and management of all diocesan property and assets now in their control and under their management to the plaintiff, Firmilian, or his lawfully designated nominees or successors.”

The defendants’ argument rests on the presence in the judgment of findings, to which the defendants also object, that the property transferred to the foreign corporations by the Illinois religious corporation was impressed with a trust imposed in favor of members of the Diocese and that, following the suspension of Dionisije, Firmilian, as administrator of the Diocese and as chief executive officer of the Illinois and the foreign corporations, became responsible for the administration of that trust. The plaintiffs ’ second amended and supplemental complaint does not seek relief against the foreign corporations, and we do not consider that the ordering portion of the judgment is intended to require action on their part. Aloe v. Lowe (1921), 298 Ill. 404, 408.

So far as the findings of the court are concerned, they are not inappropriate. This case was tried and decided on the proposition that the property at stake was held in trust for the members of the Diocese subject to the control of its bishop under the provisions of the constitutions of the Serbian Orthodox Church and of the Diocese. The defendants’ answer to the complaint did not assert by way of an alternative defense that the disposition of the property to which the two corporations hold title was not subject to the directives of whoever was the legitimate bishop of the Diocese. The earlier judgment entered after trial contained the same findings as those in the judgment on remand respecting property held by the foreign corporations. The defendants’ post-trial motion to reconsider did not challenge them. The plaintiffs state that no such challenge was made on appeal, and the defendants do not contend to the contrary.

The validity of Dionisije’s suspension and removal and the validity of Firmilian’s appointment as administrator having been conclusively adjudicated, any claim based on Dionisije’s former status as bishop was perforce extinguished. (See 426 U.S. 696, 709, 723 n.15, 724, 49 L. Ed. 2d 151, 163, 170 n.15, 171, 96 S. Ct. 2372, 2380, 2387 & n.15.) For the same reason we cannot now entertain the defendants’ contention that the property held by the foreign corporations is, under their constitution and bylaws, controlled individually by their members, and is not in fact diocesan property. Moreover, even assuming that the judgment below somehow deprived the corporations of a property interest, we fail to see how Dionisije or his co-defendants were thereby prejudiced or aggrieved. Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 451.

On the remand the defendants also asserted a right to be reimbursed for “improvements” in the Pennsylvania property which are said to have enhanced its value. These improvements, whose nature is not described in the defendants’ brief, were allegedly made at the defendants’ own expense, and the defendants ask that the cause be remanded to the trial court for the purpose of receiving evidence relative to the amount due.

The alleged improvements were not made, the defendants admit, until after the conflict between the Dionisije and the Firmilian factions had developed, Dionisije had been deposed, and the present litigation had been begun. It is not asserted that the improvements were made with the plaintiffs’ consent or pursuant to a court order. And again, it does not appear that the question of reimbursement was raised either at th.e trial or in the appeal which followed. A hearing on the reimbursement matter was therefore not warranted.

On the remand the defendants represented to the trial court that in May 1977 they had obtained through the Federal Freedom of Information Act (5 U.S.C. sec. 552 (1977)) certain documents not available at the time of trial which purportedly showed complicity by the government of Yugoslavia in the proceedings which led to the suspension and removal of Dionisije. The defendants alleged that in addition to the documents already received others had been requested from various Federal agencies but had not yet been delivered. The defendants did not request the admission into evidence of any documents, but asked that they be allowed “additional time to obtain full documentation and contact possible witnesses.”

Even if the defendants were seeking a new trial in an ordinary suit, the record before us would require a holding that no showing had been made of newly discovered evidence so conclusive as to make it likely that a new trial would yield a different result (Crane Co. v. Parker (1922), 304 Ill. 331, 337). And here, of course, the determination whether there was ground for Dionisije’s suspension and removal was one which, under the decision of the United States Supreme Court in this case, was committed to an ecclesiastical tribunal. Review of its decision would be “marginal,” extending at most to whether its decision was the product of collusion. 426 U.S. 696, 711-13, 49 L. Ed. 2d 151, 163-64, 96 S. Ct. 2372, 2381-82.

This proceeding has now lasted over 15 years, and during this time the defendants, by virtue of supersedeas orders, have enjoyed control over the property and the administration of diocesan affairs to the exclusion of the plaintiffs, notwithstanding the removal of Dionisije. There is no reason to prolong this litigation into the indefinite future by permitting a roving inquiry having so uncertain an outcome as the one sought by the defendants.

For the reasons given above, the judgment of the circuit court is affirmed.

Judgment affirmed.

MORAN and KLUCZYNSKI, JJ., took no part in the consideration or decision of this case.