author: CHIEF JUSTICE RYAN JUSTICE SIMON,

text:
    (No. 54685.
    ROBERTO FLORES et al., Appellants, v. THERESA DUGAN, Appellee.

      Opinion filed April 16, 1982.

    — Rehearing denied May 27, 1982.

      SIMON, GOLDENHERSH and CLARK, JJ., dissenting.
    Herbert F. Stride, Ltd., and William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for appellants.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Frederick W. Temple and John Skapars, of counsel), for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Plaintiffs, Roberto and Maria Flores, appeal from the dismissal for want of prosecution of their complaint against the defendant, Theresa Dugan. The circuit court of Lake County denied the plaintiffs’ motion for a continuance of the trial date and dismissed the cause for want of prosecution. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23) holding that a dismissal for want of prosecution was not a final and appealable order, dismissed the appeal. (90 Ill. App. 3d 1201.) The issue presented is whether a dismissal for want of prosecution, in light of the absolute right to refile the suit under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), is a final and appealable order under our Rule 301 (73 Ill. 2d R. 301). We granted plaintiffs leave to appeal (73 Ill. 2d R. 315).

In 1976 plaintiffs filed a personal injury action in the circuit court of Lake County for damages resulting from an automobile accident with the defendant. The case was tried before a jury, and a verdict was returned for the plaintiffs. Thereafter the trial judge granted defendant’s motion for a new trial. The appellate court denied the plaintiffs’ petition for leave to appeal from the order granting the new trial. (See 73 Ill. 2d R. 306.) The case was remanded to the trial court, and a new trial date was set for June 25, 1979. The judge was unable to hear the case on that date. Trial was specially reset for August 27, 1979, to accommodate the plaintiffs. The week of August 27 was a week customarily reserved for nonjury matters in Lake County. Plaintiffs’ counsel apparently was told by a clerk in the Lake County court administrator’s office one week prior to August 27 that the case would not be heard on the scheduled date. However, the trial judge informed plaintiffs’ counsel on August 24 that the case would be heard on August 27. The trial judge also informed plaintiffs’ counsel that a clerk in the administrator’s office had no authority to tell an attorney that a particular case would not be heard. Plaintiffs’ attorney voiced his objection to the August 27 trial date. He stated that the plaintiffs’ physician would not be available to testify on that date. Plaintiffs’ physician was not subpoenaed as required under local rule, and the trial judge told plaintiffs’ attorney that in Lake County, if the doctor had not been subpoenaed, the fact that the doctor is unavailable is not a ground for a continuance.

On August 27, another attorney from plaintiffs’ counsel’s office appeared in court on behalf of plaintiffs. He presented a motion for a continuance because of the absence of plaintiffs’ physician and of the other attorney, who, he claimed, was involved in another matter in Cook County circuit court. The trial judge denied the motion and offered plaintiffs’ counsel the options of (1) proceeding to trial, (2) taking a voluntary dismissal, or (3) allowing a dismissal for want of prosecution. Counsel chose a dismissal for want of prosecution, and the trial court entered an order which stated that the cause was dismissed “for want of prosecution without prejudice to refile this suit within the time permitted by statute.” The judge later denied the plaintiffs’ petition to vacate the earlier order.

Plaintiffs argue that a dismissal for want of prosecution is a final and appealable order. The basis of plaintiffs’ argument is that the effect of the dismissal is to dispose of the cause and remove it from the court’s calendar, even though it is not a decision on the merits. Plaintiffs also argue that it was an abuse of discretion for the trial judge to deny the continuance and dismiss the case. Defendants counter that a dismissal for want of prosecution is not a final and appealable order since the plaintiff has an absolute right to refile the cause.

We need not address whether the trial court abused its discretion because we hold that, in light of a plaintiff’s absolute right to refile this cause under section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a), an order dismissing a cause for want of prosecution is not a final and appealable order under Supreme Court Rule 301 (73 Ill. 2d R. 301).

The 1970 Constitution provides that “[a] ppeals from final judgments of a Circuit Court are a matter of right to the Appellate Court ***.” (Emphasis added.) (Ill. Const. 1970, art. VI, sec. 6.) Also, the Constitution vests in this court the authority to make rules governing appeals. (Ill. Const. 1970, art. VI, secs. 6, 16.) Accordingly, Supreme Court Rule 301 provides that “[e] very final judgment of a circuit court in a civil case is appealable as of right.” (73 Ill. 2d R. 301.) The appellate court, subject to exceptions for appeals from interlocutory orders specified in our rules, is without jurisdiction to review judgments, orders or decrees which are not final. (Village of Niles v. Szczesny (1958), 13 Ill. 2d 45.) The specified exceptions in our rules which allow appeals from interlocutory orders are not applicable in this case.

A final judgment has been defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 119; 49 C.J.S. Judgments sec. 5 (1947).) We have also stated on many occasions that a judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171; Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48.) The order or judgment in this case, dismissing the cause for want of prosecution, is not a final order since the plaintiffs had an absolute right to refile the action against the same party or parties and to reallege the same causes of action. Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616; Franzese v. Trinko (1977), 66 Ill. 2d 136; Ill. Rev. Stat. 1979, ch. 83, par. 24a.

In determining the effect of a dismissal for want of prosecution as it relates to the finality of the judgment entered, it is appropriate to consider our Rule 273 (73 Ill. 2d R. 273), which provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” (Emphasis added.)

In Kutnick v. Grant (1976), 65 Ill. 2d 177, this court considered the effect of Rule 273 in relation to a dismissal for want of prosecution and noted that section 24 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 24a) is a statute which comes within the “otherwise specifies” provision of Rule 273. The court reasoned that the provisions of section 24 of the Limitations Act giving a plaintiff an absolute right to refile within one year following a dismissal for want of prosecution would be meaningless if Rule 273 were construed as making such a dismissal an adjudication on the merits. Thus, in Kutnick Rule 273 was held not to apply to dismissals for want of prosecution. In Kutnick the court noted that section 24 of the Limitations Act was amended to include dismissals for want of prosecution five months after Rule 273 became effective.

In People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171, this court, in discussing when an order is final so as to be appealable, stated:

“A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment.”

If an order possesses such a degree of finality, it would clearly be res judicata and would prevent relitigating the issues involved. Although Kutnick did not deal with the question now before us, the holding in that case and the holding in Silverstein compel the conclusion that the order entered in this case dismissing plaintiffs ’ cause for want of prosecution was not a final and appealable order. Under section 24 of the Limitations Act, the plaintiffs could, within one year, re file the same complaint and relitigate the same issues to judgment. Therefore, since the plaintiffs had an absolute right to refile the action within the statutory limits, the order of dismissal could not terminate the litigation.

It should also be noted that the order in this case dismissing the cause for want of prosecution itself provided that it was not a final and appealable order by stating that the dismissal was entered “without prejudice to refile this suit within the time permitted by statute.” Although this language may have been superfluous in light of our holding discussed above, it clearly manifests the intent of the court that the order not be considered final and appealable. Similar language was included in an order considered in Arnold Schaffner, Inc. v. Goodman (1979), 73 Ill. App. 3d 729, 731, where the court stated:

“The order in the case at bar is on its face a nonappealable order because of the recitation 'without prejudiced [Citation.] Since plaintiff could have refiled the action within one year after the dismissal pursuant to section 24 of the Limitations Act [citations], the order did not terminate the litigation.” (Emphasis added.)

Plaintiffs have cited cases which, they contend, hold that an order dismissing a case for want of prosecution is final and appealable. We do not consider the cases cited to be helpful. The language in some of the cases is dicta. In some the question of the appealability of such an order was not raised, and in others the decisions were rendered prior to the effective date of the amendment to section 24 of the Limitations Act in 1967, which specifically provided that a case dismissed for want of prosecution fell within the provisions of that statute.

The result we reach may seem to be harsh in view of the argument made to this court that the plaintiffs have not in fact refiled their suit and affirmance would bar them from an adjudication on the merits. Also, plaintiffs contend that, if no appeal lies, there will be no way to determine whether the trial judge abused his discretion in dismissing the case for want of prosecution. The remedy of refiling created by section 24 of the Limitations Act is in fact a more expeditious and less expensive remedy than an appeal. Following the dismissal, plaintiffs could have refiled immediately, and a disposition on the merits could have been made much sooner than if the trial judge’s ruling had been appealed to the appellate court, reversed and remanded, and then set for trial on the merits. Also, the costs involved in refiling would have been substantially less than those involved in the appellate process.

Regardless of the apparent harshness of the result, the established law, as indicated above, requires that we hold the order dismissing the plaintiffs’ action for want of prosecution was not a final and appealable order, and the appellate court properly dismissed the appeal.

Judgment affirmed.

JUSTICE SIMON,

dissenting:

I disagree with the result reached by the majority and much of its reasoning. I would hold a dismissal for want of prosecution to be an appealable final judgment even though section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a) allows plaintiff to re file the action.

The majority rests its conclusion that a dismissal for want of prosecution is nonfinal and hence nonappealable on two lines of argument. One is that because section 24 allows plaintiff to refile, such a dismissal does not terminate the action and thus is not “final” for purposes of appeal. The other is that since a dismissal of this sort does not address the merits it therefore cannot be considered “final” at all, since it would not act as res judicata in the case of a subsequent filing.

I address the latter argument first. The idea that a judgment must be on the merits in order to be “final” and hence appealable is not our law. If it were, no judgment which failed to decide the substantive merits of a case would be subject to appeal, even though it might put the plaintiff out of court just as effectively as if it did. Yet we know that dismissals for lack of jurisdiction (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 577) and on forum non conveniens grounds (e.g., Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484) are appealable under the common law of Illinois despite the fact that they in no way resolve the substantive rights of the parties or act as res judicata in subsequent actions involving them. I believe the majority’s reliance on People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, for the proposition that a judgment must be on the merits in order to be appealable adds to that opinion what is not in it. The holding in Silverstein that an order directing the plaintiff to respond to a subpoena was nonappealable had nothing to do with any finding that the order did not decide the merits of the main case but resulted from the fact that the discovery order was collateral to the case. The language the majority quotes from Silverstein has a long pedigree in this State (see, e.g., Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48, and cases cited therein), but in none of the cases which used it was the failure of the order appealed from to dispose of the substantive merits of the main case the sole reason for holding the order unappealable; in fact, one case using this language (Roddy v. Armitage-Hamlin Corp. (1948), 401 Ill. 605, 609-10) immediately qualifies it as expressing only one of many possible tests for finality, with several of the mentioned alternatives allowing -an appeal “even though matters of substantial controversy remain to be disposed of’ (401 Ill. 605, 610). And in Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 575-76, in which the language quoted in Silverstein was also used, this court went on to say that “a judgment for the defendant may be a final judgment, although it is not a judgment on the merits and does not preclude the plaintiff from maintaining a second action against the defendants on the same cause of action.” Finally, Kutnick v. Grant (1976), 65 Ill. 2d 177, cited by the majority here as relevant insofar as it holds that dismissals for want of prosecution are not adjudications on the merits, is not relevant at all if the finality of an order for purposes of appeal does not depend on whether the order adjudicates the merits.

The other basis for the majority opinion is that dismissals for want of prosecution are nonfinal because section 24 gives plaintiff the right to re file the case. The argument is that the consequent failure of the dismissal to terminate the controversy renders it nonfinal even if we accept the idea that its failure to resolve the merits is not the litmus test of finality. The majority cites but one appellate court case, Arnold Schaffner, Inc. v. Goodman (1979), 73 Ill. App. 3d 729, as standing for this proposition. However, this still does not explain away the fact that, as I have already pointed out in referring to dismissals on jurisdictional or forum non conveniens grounds, our case law treats dismissals on various grounds as appealable despite their leaving plaintiffs free to re file the identical lawsuit in a different court.

Instead of reaching for formulaic tests for finality, which are hard to discern in procedural law, I would reason by analogy in cases such as this where the answer is not clear. Cases interpreting our constitutional provision that final judgments are appealable as of right (Ill. Const. 1970, art. VI, sec. 6) have held “final” various types of orders whose effects on the plaintiff are similar to those produced by a dismissal for want of prosecution with right to re file. Quashing of service of process, for example, does not end the litigation, but merely forces the plaintiff to re file the lawsuit and attempt a proper service on the defendant. Yet courts in Illinois have consistently held orders quashing service of process to be final and appealable despite the plaintiffs ability to re file. (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 577 (accord, Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61; Havlen v. Waggoner (1981), 92 Ill. App. 3d 916; Connaughton v. Burke (1977), 46 Ill. App. 3d 602; Lombardi v. Lombardi (1961), 31 Ill. App. 2d 184.) This is in large part because such an order constitutes “a final determination that appellee was not amenable to the process of the court” (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 577) and a ruling that the plaintiff must do something more as a precondition to having the merits of his case heard by any court. The purport of a dismissal for want of prosecution is hardly different. Forum non conveniens dismissals have a similar legal purport and the same practical effect on the plaintiff, who is forced to re file his case in a different court; as already pointed out, these dismissals too are interpreted as final, re viewable orders by Illinois courts. (Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484, 489; cf. Stone Container Corp. v. Industrial Risk Insurers (1980), 91 Ill. App. 3d 807 (jurisdiction to hear appeal of dismissal assumed by appellate court).) Denials of temporary restraining orders have been ruled final judgments even though suits for more permanent relief on the same facts were pending or sure to follow. (See People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App. 3d 675, 677-80 (appellate court on its own initiative found such a denial to be appealable as a final judgment rather than merely an appealable interlocutory order under Supreme Court Rule 307(a)(1) (50 Ill. 2d R. 307(a)(1)).) Finally, orders granting or denying relief from a judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) or in comm nobis proceedings have always been treated as final and appealable as of right, even though orders granting such relief have the effect of unsettling things rather than settling them. (See Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 530-31, and cases cited therein, and Mabion v. Olds (1967), 84 Ill. App. 2d 291, 294.) The committee comments to Supreme Court Rule 304(b)(3) (73 Ill. 2d R. 304(b)(3)) adopted in 1969 state that the right of appeal from the' grant or denial of a section 72 petition was “intended to be declaratory of existing law” (73 Ill. 2d R. 304, at 463). (See People ex rel. Courtney v. Green (1934), 355 Ill. 468, 473.) I fail to see any reason for according different treatment to dismissals for want of prosecution.

Additionally, it is not clear to me why the line of Illinois cases holding dismissals for want of prosecution to be final and appealable orders is rendered irrelevant as precedent by the subsequent enactment of section 24 of the Limitations Act. (See, e.g., Pettigrove v. Parro Construction Corp. (1963), 44 Ill. App. 2d 421, citing authorities; Athletic Association v. Crawford (1963), 43 Ill. App. 2d 52; Liberty Mutual Insurance Co. v. Congress Michigan Auto Park, Inc. (1958), 19 Ill. App. 2d 502; Craven v. Craven (1950), 407 Ill. 252.) The majority, in treating these cases as superseded by the remedy of refiling set forth in 1967 in the Limitations Act, assumes that the 1967 amendment to the Act created the remedy. I view section 24 not as creating a new remedy but rather as improving upon one that already existed. A plaintiff could always re file his lawsuit as long as the dismissal was without prejudice, and trial courts were always free to issue such dismissals without prejudice. (E.g., Athletic Association v. Crawford (1963), 43 Ill. App. 2d 52; Liberty Mutual Insurance Co. v. Congress Michigan Auto Park, Inc. (1958), 19 Ill. App. 2d 502.) In addition, plaintiff was often given the right to ask for reinstatement of the cause of action in the same court. (E.g., Pettigrove v. Parro Construction Corp. (1963), 44 Ill. App. 2d 421 (court order dismissing cause for want of prosecution specifically granted leave to reinstate on petition).) Unless the refiling or the reinstatement was disallowed, the plaintiffs day in court was no more concluded than it is now with his “absolute” right to re file. At most, the effect of section 24 was to require that all rather than merely some dismissals for want of prosecution be without prejudice (Franzese v. Trinko (1977), 66 Ill. 2d 136), and to toll, for a one-year period, the running of those statutes of limitation whose normal operation would bar a refiling upon dismissal. Thus I cannot agree that the 1967 amendment of section 24 supersedes cases such as Liberty Mutual and Pettigrove which hold clearly that dismissals for want of prosecution are appealable final orders, whether or not they were with prejudice.

My disagreement with the majority, I believe, is grounded in common sense as well as common law. A plaintiff dismissed from court for want of prosecution is sent home without day, and his docket number is closed. The court has nothing more to do with him until he brings another action, and that will be another case, not a continuation of the dismissed one. The first case is finished. (See Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569; Pettigrove v. Parro Construction Corp. (1963), 44 Ill. App. 2d 421.) The plaintiff’s new action may be in another county, or even another State; it may involve different parties and different theories or claims. It may never be brought at all. Nor can the defendant maintain that the plaintiff does not lose anything if he brings the identical action, and so has nothing yet to appeal. At the very least, a dismissal for want of prosecution may result in an enforceable money judgment against the plaintiff for court costs. I do not see why this judgment, however small, cannot be a “final judgment,” or why an appeal of the judgment for costs cannot include an attack on the dismissal on which the judgment was based.

As to the main dispute, the mere fact that a new suit is not barred by res judicata or the statute of limitations does not mean that the plaintiff will be able to bring one or to make it as potentially successful as the first suit. There is no guarantee that the plaintiff will ever again be able to assert personal jurisdiction over the defendant so as to bring him into the courts of this State. If the defendant should move out of State after the case is dismissed, or if he should die and his estate and executor are not present in Illinois, it may be impossible to assert any kind of jurisdiction here. The plaintiff may also be required to retake depositions or reissue subpoenas to witnesses, and witnesses may disappear or lose their memory. Or in the interim, while no suit is pending, the defendant may dispose of his property or otherwise place it beyond the plaintiffs reach. Finally, bringing the second action may be more time-consuming than an appeal, rather than less, as the majority today assumes.

Appeals are often long and expensive. But surely most plaintiffs will consider that in deciding whether to appeal or to file a new lawsuit. Plaintiffs get no money until the end; it is in their interest to speed things along. The majority’s decision denies an appeal to people who legitimately feel that an appeal is better than having to start over. It also sets a trap for plaintiffs who, like the present one, opt for the wrong remedy and find themselves with no remedy at all.

I therefore dissent.

GOLDENHERSH and CLARK, JJ., join in this dissent.


source: Caselaw Access Project

author: JUSTICE WARD

license: Public Domain

text:
    (No. 54362.

      In re J.N., A Minor, Appellant (The People of the State of Illinois, Appellee).

      Opinion filed March 29, 1982.
    Rehearing denied May 27, 1982.

      Mary Robinson, Deputy Defender, and Kyle Wesendorf, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko, William L. Browers, and David Mannchen, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
   JUSTICE WARD

delivered the opinion of the court:

The appeal involved here is from an order imposing a term of supervision upon J.N., a minor, after he was found guilty of criminal damage to property. The appellate court, in a Rule 23 order (73 Ill. 2d R. 23), dismissed the minor’s appeal (89 Ill. App. 3d 1204), saying that it lacked jurisdiction. The court considered that the order placing J.N. on supervision was not a final judgment within the meaning of our constitution’s provision granting a right of appeal only from final judgments of circuit courts (Ill. Const. 1970, art. VI, sec. 6). We allowed the minor’s petition for leave to appeal. 73 Ill. 2d Rules 315, 612, 660.

A petition for adjudication of J.N. as a delinquent was filed in the circuit court of Kane County on March 22, 1979. The petition alleged that J.N. had committed the offense of criminal damage to property in excess of $150 (Ill. Rev. Stat. 1979, ch. 38, par. 21-1). On April 23 an amended petition, which set out a different residential address for J.N., was filed.

The court conducted an adjudicatory hearing that was concluded on July 17, 1979. After the hearing, the court entered an order continuing the matter to July 30 for disposition. The order stated: “On presentation of the evidence, the minor respondent is found guilty of criminal damage to property over $150 as per State’s original petition.” On July 30, the matter was again continued “for disposition.”

On August 7, 1979, the court issued two orders that raise the basis for this appeal. One was entitled “Dispositional Order/Conditions of Supervision/1 yr.” The form used in preparing the order contained the word “probation,” in its title, but it was crossed out in ink. The order provided that, “[a] s conditions of supervision/probation,” J.N. must report to a probation officer, permit the probation officer to visit him, reside with his parents, pay restitution, pay the court costs of the proceeding, and observe a curfew. The order stated that the matter was continued to August 5, 1980, “for review.”

The other order which was entered on August 7, 1979, was entitled “Hearing Order.” It stated that the cause was continued until August 5, 1980. The order provided that during that period the minor was to continue under supervision through “Juvenile Court Services.” The order noted that the cause was being “continued for supervision/continued for review.”

The appellate court held that the orders did not constitute a final judgment. Rather, the appellate court judged, the trial court had only continued the hearing on the matter pursuant to section 4-7 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 704-7). That section provides:

“In the absence of objection made in open court by the minor, his parent, guardian, custodian or responsible relative, the court may, before proceeding to findings and adjudication, or after hearing the evidence but before noting in the minutes of proceeding a finding of whether or not the minor is a person described in Section 2 — 1 [that is a delinquent, a minor in need of supervision, or a neglected or dependent minor], continue the hearing from time to time, allowing the minor to remain in his own home subject to such conditions as to conduct and visitation and supervision by the probation officer or other designee of the court as the court may prescribe. ***”

The appellate court concluded that the circuit court had continued the matter rather than disposed of it by placing the minor on probation. The court reasoned that the circuit court had not expressly found J.N. to be a delinquent minor and had not adjudged him a ward of the court. Moreover, the “Hearing Order” used the expression “continued under supervision,” and the word “probation” had been crossed out from the title of the “Dispositional Order.” Upon the appellate court’s dismissal of the appeal, it assessed State’s Attorney’s fees against the minor in the amount of $75.

We judge that the appellate court erred in dismissing the appeal. Although the orders here purported, at least in part, to be orders of continuance, in substance and realistically they constituted a final judgment.

Except where a rule of this court provides for an interlocutory appeal, the appellate court has jurisdiction to review only final judgments. (Ill. Const. 1970, art. VI, sec. 6; Commonwealth Loan Co. v. Baker (1968), 40 Ill. 2d 506, 508; People v. Miller (1966), 35 Ill. 2d 62, 67.) Under our Rule 660(a) (73 Ill. 2d R. 660(a)), appeals from final judgments in delinquency proceedings are governed by the rules applicable to criminal cases, except where specifically provided otherwise.

A judgment is final if it decides the controversy between the parties on the merits and fixes their rights, so that, if the judgment is affirmed, nothing remains for the trial court to do but to proceed with its execution. (Roddy v. Armitage-Hamlin Corp. (1948), 401 Ill. 605, 609; Anderson v. Anderson (1975), 28 Ill. App. 3d 1029, 1032; Allabastro v. Wheaton National Bank (1980), 91 Ill. App. 3d 222, 224.) In criminal cases, there is no final judgment without a sentence. (People v. Allen (1978), 71 Ill. 2d 378, 381; People v. Warship (1974), 59 Ill. 2d 125, 130.) Similarly, in proceedings under the Juvenile Court Act, the dispositional order results in the final judgment. See In re Smith (1980), 80 Ill. App. 3d 380; In re Lee (1979), 73 Ill. App. 3d 449.

The Act sets out these rules in regard to delinquency proceedings:

“(1) After hearing the evidence the court shall make and note in the minutes of the proceeding a finding of whether or not the minor is a person described in Section 2 — 1 [that is, a delinquent]. If it finds that the minor is not such a person or that the best interests of the minor and the public will not be served by adjudging him a ward of the court, the court shall order the petition dismissed and the minor discharged from any detention or restriction previously ordered in such proceeding.
(2) If the court finds that the minor is a person described in Section 2 — 1 and that it is in the best interests of the minor and the public that he be made a ward of the court, the court shall *** adjudge him a ward of the court and proceed at an appropriate time to a dispositional hearing.” (Ill. Rev. Stat. 1979, ch. 37, par. 704-8.)

The Act provides for a number of types of dispositional orders, one of which is conditional discharge or probation with “conditions as may be ordered by the court.” Ill. Rev. Stat. 1979, ch. 37, par. 705-3(2)(o).

We consider that the circuit court here entered what was in effect a dispositional order. In determining whether a judgment is final, one should look to its substance rather than to form. (Mills v. Ehler (1950), 407 Ill. 602, 610; Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App. 3d 1053, 1057.) In substance, the result of the trial court’s action was to place J.N. on probation or to provide for a conditional discharge.

The circuit court did not refer to section 4 — 7, from which we quoted above and under which the appellate court considered the circuit court had acted. Instead, the order setting out the conditions of supervision cited section 5-3 of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 705-3), which provides for the dispositional orders of probation and conditional discharge. While the circuit court did not explicitly find J.N. to be a delinquent, it did find J.N., who was 13 years old, guilty of the offense as charged in the petition for adjudication as a delinquent. The court pronounced the finding of guilt in open court and in a written order that was never vacated. Considering this, we must treat that finding as a finding of delinquency, because the Act defines a delinquent as a minor who “prior to his 17th birthday has violated *** any federal or state law ***.” Ill. Rev. Stat. 1979, ch. 37, par. 702-2.

Really then, placing J.N. on “supervision” was to make a disposition of the case. As with any other dispositional order in a delinquency proceeding, the judgment was final because all that remained to be done by the court was to execute the judgment. In this case, all that remained was later to terminate formally the status of supervision.

We recognize that under the Act a dispositional order is not to be entered until after the court has adjudged the minor a ward of the court. It has been held, however, that if a dispositional order is entered without the requisite adjudication of wardship, the judgment embodied in the dispositional order is nevertheless final and appealable. (In re Younger (1977), 45 Ill. App. 3d 922, 924; In re Horton (1977), 45 Ill. App. 3d 264, 265-66.) Further, the minor need not be explicitly adjudged to be a ward of the court in order to give the court jurisdiction. An adjudication of wardship may be implied. (In re Scott (1978), 62 Ill. App. 3d 367, 368.) We consider that under the circumstances here the adjudication by the judge of the minor to be a ward of the court is reasonably to be implied.

The People contend that an appeal should not be allowed because the record shows “the absence of objection” by J.N. or his parents or counsel to his being placed on supervision. The People point to the language of section 4 — 7, which we have set out above, and say that a minor’s case can be continued on supervision only with his consent, i.e., without his objection. This consent to continuing the case is, under the terms of section 4 — 7, inconsistent with the notion of an appeal. Therefore, they claim, appeal should not be allowed.

As we have observed above, the People’s reliance on section 4 — 7 is misplaced. That section permits the court to place a minor on supervision before findings and adjudication. Here, the court placed J.N. on supervision after a finding of guilt, which J.N. unequivocally protested and sought to challenge on appeal. Under these circumstances, that is, after being found guilty and being placed on supervision, J.N. did not waive appeal by simply failing to express an objection to being placed on supervision. Cf. People v. Sims (1965), 32 Ill. 2d 591, 593 (defendant did not waive his right to review his conviction by accepting a grant of probation); People v. Shambley (1954), 4 Ill. 2d 38, 39-41 (defendant who was found guilty of a criminal offense and fined did not waive his right to review the conviction by paying the fine).

For the reasons given, the order of the appellate court dismissing the appeal is vacated. As the order assessing State’s Attorney’s fees was based upon dismissal of the appeal, we direct the appellate court to vacate that order. The cause is remanded to the appellate court for consideration of the questions raised in the appeal.

Vacated and remanded, with directions.


author: JUSTICE CLARK

text:
    (No. 54765.
    THE PEOPLE ex rel. THE JUDICIAL INQUIRY BOARD et al., Petitioners, v. THE COURTS COMMISSION et al., Respondents.

      Opinion filed April 16, 1982.

      Rehearing denied May 27, 1982.

      RYAN, C.J., took no part.

      Michael L. Shakman and Arthur W. Friedman, of Krupp & Miller, and Pierce, Lydon, Griffin & Montana, all of Chicago, for petitioners.
    Tyrone C. Fahner, Attorney General, of Springfield (Jon E. Tweedt, Assistant Attorney General, of counsel), for respondents.
    William J. Harte, Ltd., of Chicago, and Edwin T. Powers, Jr., of Rockford, for intervenor John W. Nielsen.
   JUSTICE CLARK

delivered the opinion of the court:

The Judicial Inquiry Board and its chairman filed a complaint with the Illinois Courts Commission charging Judge John W. Nielsen with various violations of Supreme Court Rule 61 (73 Ill. 2d R. 61). The Commission dismissed the complaint (In re Nielsen (Dec. 29, 1980), No. 80-CC-1) and subsequently denied the Board’s motion for reconsideration. We granted the Board’s motion for leave to file a petition for a writ of mandamus. Judge Nielsen was allowed to join in the action as an intervenor.

The background of this action is as follows. The Board’s complaint before the Commission alleged that Judge Nielsen had improperly deprived three pro se defendants, each of whom had been charged with a traffic offense, of their statutory right to a jury trial. He ordered them to sign jury waivers, to which at least one defendant objected.

The Courts Commission determined that Judge Nielsen erred in depriving the defendants of a jury trial. However, it concluded that the imposition of discipline was not required under Supreme Court Rule 62, and dismissed the complaint. Rule 62 provides:

“A judge who violates the Standards of Judicial Conduct may be subject to discipline by the Courts Commission. The Standards, due to their general terms, may be inadvertently violated on occasion by a judge and such conduct may be too insignificant to call for official action.” 73 Ill. 2d R. 62.

In its order dismissing the complaint against Judge Nielsen, the Commission determined that discipline was not warranted because “there [had] been no showing of a general attitude of arbitrariness on the part of the [judge] in the performance of his judicial duties or in the exercise of his authority,” and that “[t] he Board [had] not proved by clear and convincing evidence that the [judge’s] conduct [constituted] such a gross abuse of the Standards of Judicial Conduct as to require the imposition of discipline.” Previous decisions of the Commission have consistently construed Rule 62 to mean that “a single serious *** violation of the standards by a judge is sufficient to support the imposition of discipline ***. Absent a serious violation, the judge must demonstrate a pattern of arbitrary conduct in his office or a pattern of conduct hostile to the Standards of Judicial Conduct, as set out in Supreme Court Rule 61, to warrant the imposition of discipline.” (In re Alfano (July 8, 1981), No. 80-CC-3, slip op. at 17, citing In re Campbell (1980), 1 Ill. Cts. Com. 164, 171, and In re Knowlton (1979), 1 Ill. Cts. Com. 131, 135.) It is clear from the above that the Commission has, in the past, interpreted the rules of judicial conduct, and that the decision in In re Nielsen is consistent with the Commission’s previous practice.

Nevertheless, the Board asserts that the Commission’s decision dismissing the complaint against Judge Nielsen exceeded its constitutional authority. Citing People ex rel. Harrod v. Illinois Courts Com. (1977), 69 Ill. 2d 445, the Board contends that the Commission has no authority to interpret the supreme court rules of judicial conduct. The gist of its argument is that the Commission’s decision in In re Nielsen misinterpreted Rule 62. The Board urges that a writ of mandamus issue to compel the Commission to vacate its order, on the ground that the Commission exceeded its jurisdiction and its order was therefore void.

In Harrod, this court considered the Commission’s authority to interpret an Illinois statute. The court held that the Commission’s constitutional authority did not extend to making “its own independent interpretation and construction” of a statute, and that insofar as the Commission purported to do so it exceeded its authority. A decision of the Commission based on such an independent interpretation was beyond its jurisdiction, and mandamus was found appropriate to compel the Commission to vacate its void decision and order. 69 Ill. 2d 445, 473-74.

On the basis of Harrod’s holding that the Commission lacks authority to make an independent interpretation of a statute, the Board argues that the Commission likewise lacks authority to interpret a supreme court rule. We disagree. The Courts Commission is the body with the constitutional responsibility for applying the Rules of Judicial Conduct to particular cases. We conclude that its constitutional authority to hear and determine disciplinary cases necessarily includes the power to interpret the rules it applies in deciding cases before it.

The Courts Commission is the adjudicatory arm of the system of judicial discipline established by article VI, section 15, of our constitution. (Ill. Const. 1970, art. VI, sec. 15.) Section 15(e) vests the Commission with the authority to hear and determine complaints filed against judges by the Judicial Inquiry Board, which is the investigative and charging arm of the disciplinary system; and with the authority to impose sanctions for “willful misconduct in office, persistent failure to perform [their] duties, or other conduct that is prejudicial to the administration of justice or that brings the judicial office into disrepute.” (Ill. Const. 1970, art. VI, sec. 15(e).) The report of the Committee on Judiciary of the 1970 constitutional convention concerning section 15 states:

“The Courts Commission will hear and determine the charges and either dismiss them or impose a sanction of suspension without pay or removal or censure for cause, or, in cases of disability, suspension with or without pay, or removal or retirement. The investigative, charging and prosecuting functions are lodged in the Inquiry Board, but the adjudicatory function is separately vested in the Courts Commission.” (6 Record of Proceedings, Sixth Illinois Constitutional Convention 866-67 (hereinafter cited as Proceedings).)

Section 15(f) of article VI provides that the decisions of the Commission shall be final.

In deciding disciplinary cases before it, the Commission is not free to apply whatever law it pleases. Responsibility for promulgating standards of judicial conduct is vested by the Constitution in this court. (Ill. Const. 1970, art. VI, sec. 13(a).) In another branch of the opinion, Harrod held that the rules of judicial conduct promulgated by this court are the sole basis for a complaint before the Commission and consequently for the imposition of discipline. (People ex rel. Harrod v. Illinois Courts Com. (1977), 69 Ill. 2d 445, 470.) It is thus established that the law which the Commission is to apply in deciding disciplinary cases is the supreme court rules.

The issue, then, is whether the Courts Commission, in the exercise of its duty to apply the rules of judicial conduct to the case before it, has the authority to interpret or construe the rules. We conclude that it does. The Commission’s function is adjudicative, and interpretation of the legal rule the tribunal is applying is an inherent and inescapable part of the adjudicative process. “To interpret” means “[t] o construe; to seek out the meaning of language” (Black’s Law Dictionary 953 (5th ed. 1979)) and “to explain or tell the meaning of; to translate into intelligible or familiar language or terms” (Webster’s Third New International Dictionary 1182 (3d ed. 1971)). The trial court, which, like the Commission, decides cases by finding the facts and applying the law to them, must first read the relevant statute and appellate cases and based on its understanding of them determine what, on the facts before it, the law requires. In carrying out its constitutional responsibility to decide disciplinary cases, the Courts Commission must determine, based on its understanding of the rules, whether the standards of conduct have been violated and whether, under the circumstances, discipline should be imposed. We hold that it was within the Commission’s constitutional authority to interpret Rule 62.

This conclusion is not inconsistent with Harrod’s holding that the Commission does not have authority to make an independent interpretation of a statute which has been given a different interpretation by a court. Since the Commission is the tribunal with final responsibility for applying the rules of judicial conduct to disciplinary cases, there is no possibility that its interpretation of a rule will be at odds with an interpretation by a court. Thus the possibility referred to in Harrod of conflicting interpretations creating a dilemma for trial and appellate judges does not arise. People ex rel. Harrod v. Illinois Courts Com. (1977), 69 Ill. 2d 445, 473.

In asking this court to hold that the Commission has misinterpreted Rule 62, the Board is actually asking that we review the correctness of the Commission’s application of the rule in a particular decision. This we cannot do. The Constitution mandates that the Commission’s decisions shall be final. The finality of the Commission’s decisions is an important part of a constitutional arrangement designed to create an independent and autonomous system of judicial discipline that would be both effective and fair. (6 Proceedings 872-73.) We note that even before the Constitution of 1970 elevated the finality'of the Commission’s decisions to a constitutional principle, this court refused to hear appeals from its decisions. In re Napolitano (1970), 1 Ill. Cts. Com. 9, purported appeal dismissed (Sept. 23, 1970), No. 43508.

The Board characterizes the Commission’s application of Rule 62 as “creating a new standard of conduct for judges” and as “promulgating requirements in addition to the Supreme Court’s Rules of Conduct,” in excess of the Commission’s authority. We regard this as an attempt to circumvent the rule of finality. We point out that this court is not without power to affect the decisions of the Commission and its interpretation of our rules, 'but according to the constitutional arrangement we do so not by reviewing the Commission’s decisions, but by amending the rules which it applies.

In response to the Inquiry Board’s petition for mandamus the Courts Commission filed a motion to dismiss on the grounds that the Board lacked authority to institute a mandamus proceeding, and that only the Attorney General was authorized to maintain this action. We have concluded that, since review of the Commission’s decision in this case is precluded by article VI, section 15(f), leave to file the petition for mandamus was improvidently granted. Because we dispose of the case on this basis, it is unnecessary to decide the issues raised by the Commission’s motion to dismiss.

Writ denied.

CHIEF JUSTICE RYAN took no part in the consideration or decision of this case.


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    (Nos. 54668, 54679, 54689, 54690 cons.
    THE PEOPLE ex rel. WILLIAM J. SCOTT, Attorney General, Appellee, v. COLLEGE HILLS CORPORATION et al., Appellants.

      Opinion filed March 16, 1982.
    Rehearing denied May 27, 1982.

      UNDERWOOD, J., took no part.
    Robert Markowitz and Robert J. Lenz, of Blooming-ton, for appellants College Hills Corp., Empire Development Co., Washington East Partnership, Lumber Lane, Inc., and Vernon P. Prenzler.
    Leon J. Zanoni and G. Michael Prall, of Yoder, Yoder, Zanoni, Flynn, Prall & Willard, of Bloomington, for appellant Phillip E. Baumgart.
    Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Bloomington (Frank M. Brady, William T. Hundman, and Mark T. Dunn, of counsel), for appellant Richard H. Hundman.
    John P. Schwulst, of Arnold, Gesell & Schwulst, of Bloomington, for appellant Carl F. Schwulst, Jr.
    Tyrone C. Fahner, Attorney General, of Springfield (Thomas M. Genovese, Thomas J. DeMay, and Bruce J. Baker, Assistant Attorneys General, of Chicago, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

On November 8, 1977, the Attorney General filed this civil penalty action in the circuit court of McLean County pursuant to section 7(4) of the Illinois Antitrust Act (Ill. Rev. Stat. 1975, ch. 38, par. 60-7(4)). The complaint charged defendants with various violations of the Act, including price fixing, tying arrangements, and unreasonable restraints of trade in the home-building and the building-material industry in the Bloomington-Normal area.

The named defendants in the complaint were four corporations: College Hills Corporation, Empire Development Company, Lumberlane, Inc., and Complex Development Company; one partnership: Washington East Partnership; and four individuals: Vernon P. Prenzler, Phillip E. Baumgart, Richard H. Hundman, and Carl F. Schwulst. On January 30, 1978, an order was entered in the circuit court dismissing defendant Complex Development Company on the ground that the company had dissolved or merged with defendant College Hills Corporation. All of the four individual defendants are identified as the chief operating officers and directors of defendant College Hills Corporation. Defendants Prenzler, Baumgart, Hundman and Schwulst are also alleged to be the chief operating officers and directors of defendant Empire Development Company, as well as partners in defendant Washington East Partnership. Lumberlane, Inc., is not made a defendant in count I of the complaint but is charged as a defendant in count II. Defendants Prenzler, Baumgart, Hundman, and Schwulst are identified as officers and directors of Lumberlane, Inc.: Vernon Prenzler, president; Phillip Baumgart, vice-president; Richard Hundman, treasurer; Carl Schwulst, secretary.

On August 15, 1978, after a number of motions on the pleadings, an order was entered in the circuit court compelling the plaintiff to file a bill of particulars. The bill was filed on August 24, 1978. The defendants subsequently filed motions to dismiss. On August 7, 1979, the circuit court struck the complaint with leave to amend within 21 days. The first amended complaint was filed August 28, 1979. The defendants named in the amended complaint are identical to those named in the first complaint, with the exception of Complex Development Company, which had been deleted.

Count I of the amended complaint alleges that the four individual defendants combined through various joint ventures to fix the price of real estate lots in the Blooming-ton-Normal area. Count II alleges that certain of the defendants’ business practices unreasonably restrained trade in the sale of lots and building materials. Count III alleges that the defendants unlawfully conditioned the sale of residential lots upon the purchase of building materials. On March 25, 1980, an order was entered dismissing the amended complaint with prejudice.

The appellate court reversed the dismissal of counts I and II, indicating that both counts stated a cause of action with sufficient specificity. The appellate court affirmed the dismissal of count III for failure to plead that the tying arrangements alleged had a requisite substantial effect upon commerce. 92 Ill. App. 3d 651.

We granted leave to appeal. The defendants seek reversal of the appellate court’s decision which determined that the pleading of counts I and II was sufficient. The People did not appeal the dismissal of count III to this court. The defendants, however, contend that the appellate court dismissed count III for the wrong reasons and have requested us to review the grounds for dismissal of count III.

The pleadings of any complaint must conform to section 42(2) of the Civil Practice Act, which states:

“No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.” (Ill. Rev. Stat. 1977, ch. 110, par. 42(2).)

Pleadings are not intended to create obstacles of a technical nature to prevent reaching the merits of a case at trial. Their purpose is to facilitate the resolution of real and substantial controversies. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 307-08.) In determining whether the complaint is adequate, pleadings are liberally construed. The aim is to see substantial justice done between the parties. (Ill. Rev. Stat. 1977, ch. 110, par. 33(3); First National Bank v. City of Aurora (1978), 71 Ill. 2d 1; Stenwall v. Bergstrom (1947), 398 Ill. 377.) To see if a cause of action has been stated the whole complaint must be considered, rather than taking a myopic view of a disconnected part. Stenwall v. Bergstrom (1947), 398 Ill. 377.

While notice pleading prevails under the Federal rules (Conley v. Gibson (1957), 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99), a civil complaint in Illinois is required to plead the ultimate facts which give rise to the cause of action (Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, 446-47, cert. denied (1971), 403 U.S. 904, 29 L. Ed. 2d 679, 91 S. Ct. 2203; Levinson v. Home Bank & Trust Co. (1929), 337 Ill. 241, 244).

We are concerned here only with the specificity of the allegations. The allegations are sufficiently specific if they reasonably inform the defendants by factually setting forth the elements necessary to state a cause of action. Fanning v. LeMay (1967), 38 Ill. 2d 209, 211.

Conspiracies by their very nature do not permit plaintiffs to allege all the details of the defendants’ conduct. Such actions are often purposefully shrouded in mystery. This is particularly true in reviewing antitrust conspiracies. The litigation is complex, the issues are often subtle, and the alleged actions carefully camouflaged.

While we recognize the distinction between factual pleading necessary in our own courts and the notice pleading requirements of Federal courts, Federal precedent is both relevant and helpful in determining the adequacy of antitrust allegations. (See People v. Crawford, Distributing Co. (1972), 53 Ill. 2d 332, 346; People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 309; Ill. Rev. Stat. 1977, ch. 38, par. 60-11.) Conspiracies often have to be proved from inferences drawn from circumstantial evidence. (United States v. Parke, Davis & Co. (1960), 362 U.S. 29, 44, 4 L. Ed. 2d 505, 515, 80 S. Ct. 503, 511.) In upholding the government’s complaint in Brett v. First Federal Savings & Loan Association (5th Cir. 1972), 461 F.2d 1155, 1158, the Court of Appeals for the Fifth Circuit said:

“Although plaintiffs may be unable to allege specific facts proving actual acts of agreement or conspiracy, the pleadings are sufficient if they set forth facts from which an inference of an unlawful agreement can be drawn. Actual agreements are seldom capable of proof by direct testimony and thus circumstantial evidence may be allowed to establish an alleged conspiracy. [Citations.] Plaintiffs cannot be required to plead with specificity the very facts which can only be proven by circumstantial evidence.”

The exact role of a particular defendant cannot always be spelled out in the complaint. In denying a motion to dismiss and a motion for a bill of particulars the district court in United States v. Johns-Manville (N.D. Ill. 1941), 67 F. Supp. 291, 293, observed:

“[I] t must be remembered that the existence of a combination to restrain trade such as charged here can seldom be proved by the evidence of witnesses to the effect that the parties have entered into a specific, oral or written agreement for that purpose. The proof usually consists of evidence of circumstances from which that conclusion follows.”

Defendants’ contention that the criminal antitrust indictment that was the subject of People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332, requires a lesser standard of pleading than section 42(2) of the Civil Practice Act was disposed of in People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 311. The indictment in Crawford alleged that the conspirators held periodic meetings to plan and carry out a conspiracy to increase and fix the price of beer sold at wholesale by defendant distributors to retailers located in Macon County. (53 Ill. 2d 332, 347.) In Carriage Way West we held the terms of the civil antitrust complaint at issue there to be sufficient. We said:

“If an indictment of this type satisfies the more rigid procedural requirements of a criminal prosecution, a complaint similarly worded should satisfy the requirements of the Civil Practice Act.” 88 Ill. 2d 300, 311.

Count I

Count I charges the defendants with price fixing in violation of section 3(1)(a) of the Illinois Antitrust Act. Section 3(1)(a) provides:

“Every person shall be deemed to have committed a violation of this Act who shall:
(1) Make any contract with, or engage in any combination or conspiracy with, any other person who is, or but for a prior agreement would be, a competitor of such person:
a. for the purpose or with the effect of fixing, controlling, or maintaining the price or rate charged for any commodity sold or bought by the parties thereto, or the fee charged or paid for any service performed or received by the parties thereto; ***.” Ill. Rev. Stat. 1979, ch. 38, par. 60-3(1)(a).

After identifying and describing the various named defendants the complaint purports to allege how the defendants effectuated their plan to fix prices. The individual defendants combined to form the defendant joint ventures. The joint ventures acquired and developed land and then transferred the developed lots to the individual defendants, who in turn sold these lots to the general public through their respective businesses at previously agreed upon prices. Paragraphs 33, 34, 35, and 36 of count I of the complaint allege:

“33. The individual defendants, through the building material and home building businesses described above, were competitors in the building material and home building industry at the time defendants COLLEGE HILLS CORPORATION, EMPIRE DEVELOPMENT COMPANY and WASHINGTON EAST PARTNERSHIP were formed.
34. The individual defendants formed COLLEGE HILLS CORPORATION, EMPIRE DEVELOPMENT COMPANY and WASHINGTON EAST PARTNERSHIP as joint ventures with the effect of eliminating price competition between competitors on the sale of developed lots zoned for the construction of either single family or two family dwellings in Bloomington-Normal.
35. The individual defendants purchased lots from the joint ventures and resold them to ultimate home owners and home building contractors at prices fixed and determined between competitors.
36. In furtherance of the aforesaid illegal combination, conspiracy, and agreement, the defendants PRENZLER, BAUMGART, HUNDMAN and SCHWULST agreed to fix, control and maintain the prices to be charged to purchasers of the following lots zoned for the construction of either single family or two family dwellings in Bloomington-Normal: ***.”

These paragraphs set forth the ultimate facts with sufficient specificity to reasonably inform the named defendants of the charges against them. Subparagraphs 1 through 9 of paragraph 36 go on to describe specific lots sold on specific dates.

The defendants have been identified, their alleged conspiracy has been explained, and the relevant lots and dates have been disclosed. The definitions of the complaint are quite intelligible and more than adequate. As an example of a fatally defective definition the defendants point to the definition of “home building contractor” in paragraph 3(c) of count I. It reads:

“ ‘Home building contractor’ means any business entity or individual who finances, supervises and manages the construction, procurement and phases of any new dwelling.” (Emphasis added.)

Two words are simply transposed, and the plaintiff has already indicated as much in response to defendants’ motions to dismiss in the circuit court. The corrected definition of an “individual who *** manages the construction and procurement phases of any new dwelling” is the only plausible one. The complaint, contrary to the defendants’ assertions, is not fraught with such errors.

The defendants claim they are confused as to whether they are charged as individuals with personal liability or the businesses with which they are associated are charged with liability. Each of the individual defendants is identified in count I (paragraphs 12 through 29) as an officer of a separate home-building and building-material business. The alignment is: Vernon Prenzler, president of Com Belt Builders, Inc.; Phillip Baumgart, president of Bloomington Home Service, Inc.; Richard Hundman, president of Hundman Oil & Lumber Co., Inc.; Carl Schwulst, president of Schwulst Building Center, Inc. Count I of the complaint alleges that the individual defendants formed joint ventures (College Hills Corporation, Empire Development Company, Washington East Partnership). The joint ventures allegedly acquired, developed and divided the land and agreed upon the retail prices to be charged for each lot. The developed lots were then transferred to the individual defendants, who, acting through their respective home-building and building-material businesses, sold the lots at previously agreed-upon prices. The individual defendants’ building-material and home-building businesses are not named as defendants. It is the individuals as well as the corporate and partnership joint ventures that are the named parties to the alleged price-fixing agreements.

Defendants maintain that the conduct alleged in count I of the amended complaint does not constitute a per se violation under section 3(1) (a) of the Illinois Antitrust Act. Section 3(1)(a) is patterned after section 1 of the Sherman Act (Ill. Ann. Stat., ch. 38, par. 60-3, Historical and Practice Notes, at 455 (Smith-Hurd 1977)), and in our construction of the Illinois Antitrust Act we are guided by Federal case law construing analogous provisions of Federal legislation (Ill. Rev. Stat. 1977, ch. 38, par. 60-11).

One possible construction of section 1 of the Sherman Act would have rendered any commercial contract violative of the Act. (Chicago Board of Trade v. United States (1918), 246 U.S. 231, 238, 62 L. Ed. 683, 687, 38 S. Ct. 242, 244.) In place of that kind of doctrinaire analysis, most business combinations axe analyzed under a “rule of reason approach” in determining whether a violation of section 1 of the Sherman Act has occurred. (Standard Oil Co. v. United States (1911), 221 U.S. 1, 55 L. Ed. 619, 31 S. Ct. 502.) However, there remain some restraints that are considered per se violations without consideration of their reasonableness. (United States v. Topco Associates, Inc. (1972), 405 U.S. 596, 607, 31 L. Ed. 2d 515, 525, 92 S. Ct. 1126, 1133.) In Northern Pacific R.R. Co. v. United States (1958), 356 U.S. 1, 5, 2 L. Ed. 2d 545, 549, 78 S. Ct. 514, 518, the United States Supreme Court described the necessity of per se rules. The court said:

“[T] here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken.”

A classic example of a restraint that is considered a per se violation is a “horizontal” restraint fixing prices or dividing markets — that is, an agreement between competitors at the same level of the market structure to accomplish these results. (United States v. Topco Associates, Inc. (1972), 405 U.S. 596, 608, 31 L. Ed. 2d 515, 526, 92 S. Ct. 1126, 1133.) The United States Supreme Court has consistently and without deviation adhered to the principle that price-fixing agreements are unlawful per se. (United States v. Socony-Vacuum Oil Co. (1940), 310 U.S. 150, 218, 84 L. Ed. 1129, 1165, 60 S. Ct. 811, 842.) The anticompetitive nature and effect of price fixing is “so apparent and so serious that the courts will not pause to assess them in light of the rule of reason.” United States v. Sealy, Inc. (1967), 388 U.S. 350, 355, 18 L. Ed. 2d 1238, 1243,87 S.Ct. 1847, 1851.

The anticompetitive effect of the price-fixing activities charged in count I is alleged in paragraph 38. Paragraph 38 states:

“(1) [T] he prices of lots have been fixed at artificial, noncompetitive levels,
(2) the supply of lots has been restrained,
(3) the purchasers of the lots have been deprived of free and open competition,
(4) home building contractors have been restrained in their business,
(5) competition between and among defendants has been suppressed.”

While the United States Supreme Court has indicated that joint ventures are not to be construed as unlawful price-fixing schemes where “the agreement on price is necessary to market the product at all” (Broadcast Music, Inc. v. Columbia Broadcasting System, Inc. (1979), 441 U.S. 1, 23, 60 L. Ed. 2d 1, 18-19, 99 S. Ct. 1551, 1564), the alleged conspiracy at hand cannot be conceived of as one of those agreements.

The defendants call the court’s attention to one Federal court’s holding that restraints on trade are not analyzed under the per se test where the conduct is subservient to a legitimate transaction. However, that opinion went on to say that any ancillary restraint must be reasonably necessary to the legitimate primary purpose of the challenged conduct and of no broader scope than is reasonably necessary. United States v. Columbia Pictures Corp. (S.D.N.Y. 1960), 189 F. Supp. 153, 178.

The fixing of prices of lots to be sold by the otherwise competing individual defendants, Prenzler, Baumgart, Hundman, and Schwulst, through their respective businesses, Com Belt Builders, Inc., Bloomington Home Services, Inc., Baumgart Building Center, Inc., Hundman Oil & Lumber Co., and Schwulst Building Center, Inc., is not subservient to the acquisition and sale of land by the joint ventures (College Hills Corporation, Empire Development Company, and Washington East Partnership) to which the individual defendants were parties.

The defendants rely upon Broadcast Music, Inc. v. Columbia Broadcasting System Inc. (1979), 441 U.S. 1, 60 L. Ed. 2d 1, 99 S. Ct. 1551, for support that the joint ventures are immunized by the doctrine of ancillary restraints. However, the Supreme Court in Broadcast Music pointed out that the action was sui generis, as it brought to the court’s attention issues combining considerations of antitrust law and copyright law in examining performing rights in the music industry. In United States v. Motor Carriers Rate Conference, Inc. (N.D. Ga. 1979), 2 Trade Reg. Rep. (CCH), par. 69,931, at 79,325-26, a Federal district court recognized that the decision in Broadcast Music “is a careful limited analysis of a single industry, containing not even the slightest hint that similar considerations govern in other unrelated fields.”

The per se analysis triggered by an alleged price-fixing conspiracy is applicable here. While the plaintiff does not delineate the co-conspirators’ roles with the utmost specificity, count I does sufficiently allege the essential elements needed to withstand this motion to dismiss. We affirm the appellate court’s judgment as to count I.

Count II

Count II of the amended complaint alleges an unreasonable restraint of trade in violation of section 3(2) of the Act (Ill. Rev. Stat. 1977, ch. 38, par. 60-3(2)). It provides:

“Sec. 3. Every person shall be deemed to have committed a violation of this Act who shall:
(2) By contract, combination, or conspiracy with one or more other persons unreasonably restrain trade or commerce.”

Again we note that cases decided under the ambit of section 1 of the Sherman Act provide guidance when construing section 3(2) in view of section 11 of the Illinois Antitrust Act (Ill. Ann. Stat., ch. 38, par. 60-3, Historical and Practice Notes, at 458 (Smith-Hurd 1977); Ill. Rev. Stat. 1977, ch. 38, par. 60-11). Both plaintiff and defendants agree that the analysis required is the so called “rule of reason” test. (Ill. Ann. Stat., ch. 38, par. 60-3, Historical and Practice Notes, at 460 (Smith-Hurd 1977); Havoco of America, Ltd. v. Shell Oil Co. (7th Cir. 1980), 626 F.2d 549; Evanston Motor Co. v. Mid-Southern Toyota Distributors, Inc. (N.D. Ill. 1977), 436 F. Supp. 1370; Standard Oil Co. v. United States (1911), 221 U.S. 1, 55 L. Ed. 619, 31 S. Ct. 502.) The court in Havoco explained:

“The rule [of reason] does not exempt restraints which may be argued to be reasonable or expedient, but rather focuses on the reasonableness of the effect of the challenged restraint on competition. [Citation.] An examination of the legality of any conduct alleged to be anticompetitive therefore necessitates a determination as to what the consequences of the conduct have been in the affected market.” 626 F.2d 549, 554.

The plaintiff must allege that a conspiracy in fact existed and that the conspiracy unreasonably restrained trade. (Aviation Specialties, Inc. v. United Technologies Corp. (5th Cir. 1978), 568 F.2d 1186, 1191-92, citing Standard Oil Co. v. United States (1911), 221 U.S. 1, 55 L. Ed. 619, 31 S. Ct. 502; Metal Lubricants Co. v. Engineered Lubricants Co. (8th Cir. 1969), 411 F.2d 426, 430.) In paragraph 47 of count II, the plaintiff alleges that such an illegal conspiracy exists. In paragraph 48 the purpose of the conspiracy is set forth:

“48. The aforesaid illegal combination and conspiracy between the defendants has been:
A) To control and restrict competition in the sale of developed lots zoned for the construction of new single family dwellings in Bloomington-Normal;
B) to limit and restrict competition between and among defendants and other entities engaged in the sale of building materials in Bloomington-Normal; and
C) to control and restrict competition in the building and sale of new single family dwellings in Bloomington-N ormal. ”

Count II alleges one single conspiracy in restraint of trade which constitutes a continuing offense that manifests itself in three different ways and not three separate conspiracies as the defendants suggest. Paragraphs 49 through 51 describe in detail what the defendants did in furtherance of the conspiracy.

The anticompetitive effects of the alleged conspiracy are described in paragraph 52 of the amended complaint:

“A) Purchasers of new single family dwellings in Bloomington-Normal have been deprived the benefits of free and open competition;
B) Prices of new single family homes sold in Bloomington-Normal have been inflated to artificial and noncompetitive levels.
C) Competition in the construction of new single family dwellings in Bloomington-Normal has been restrained and suppressed;
D) Competition in the sale of building materials in Bloomington-Normal has been restrained and suppressed.”

We need not reiterate our previous discussion of proper pleading standards under the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 33 et seq.). Count II details the defendants’ steps taken to restrain trade in lots, building materials, and new single-family dwellings. Count II is not subject to dismissal for failure to allege ultimate facts. The essential elements of the purported conspiracy and its anticompetitive effects under section 3(2) of the Illinois Antitrust Act are sufficiently alleged.

The question of whether the defendants’ conduct was reasonable is a material question of fact. (Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc. (1969), 394 U.S. 700, 703, 22 L. Ed. 2d 658, 662, 89 S. Ct. 1391, 1393. See also Continental T. V., Inc. v. GTE Sylvania, Inc. (1977), 433 U.S. 36, 49, 53 L. Ed. 2d 568, 580, 97 S. Ct. 2549, 2557; Berkey Photo, Inc. v. Eastman Kodak Co. (2d Cir. 1979), 603 F.2d 263, 304, cert. denied (1980), 444 U.S. 1093, 62 L. Ed. 2d 783, 100 S. Ct. 1061; Lamb Enterprises, Inc. v. Toledo Blade Co. (6th Cir. 1972), 461 F.2d 506, 517; Paramount Film Distributing Corp. v. Village Theatre, Inc. (10th Cir. 1955), 228 F.2d 721, 726.) And where the purported conspiracy has not been “conclusively disproved by pretrial discovery” and there remain “material issues of fact,” the United States Supreme Court has cautioned against the use of summary procedures like the dismissal ordered by the circuit court here; any summary disposition “ ‘should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.’ ” (Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc. (1969), 394 U.S. 700, 704, 22 L. Ed. 2d 658, 662, 89 S. Ct. 1391, 1393 (reversing a district court’s summary disposition), quoting Poller v. Columbia Broadcasting System, Inc. (1962), 368 U.S. 464, 473, 7 L. Ed. 2d 458, 464, 82 S. Ct. 486, 491.

In dismissing count II the trial court said that equating the relevant market with the corporate boundaries of the Bloomington-Normal area is “patently ridiculous.” The appellate court ruled that alleging the BloomingtonNormal area to be the relevant market area was not fatal to count II. We agree.

The determination of the relevant geographic market is seldom made at the pleading stage. (United States v. E. I. du Pont de Nemours & Co. (1957), 353 U.S. 586, 1 L. Ed. 2d 1057, 77 S. Ct. 872; Columbia Metal Culvert Co. v. Kaiser Aluminum & Chemical Corp. (3d Cir. 1978), 579 F.2d 20; Cackling Acres, Inc. v. Olson Farms, Inc. (10th Cir. 1976), 541 F.2d 242, cert. denied (1977), 429 U.S. 1122, 51 L. Ed. 2d 572, 97 S. Ct. 1158.) In Brown Shoe Co. v. United States (1962), 370 U.S. 294, 336-37, 8 L. Ed. 2d 510, 542, 82 S. Ct. 1502, 1530, the United States Supreme Court said that a “geographic market selected must *** both ‘correspond to the commercial realities’ of the industry and be economically significant.” And when a product is considered sufficiently unique, a relevant submarket within a broader market may be an appropriate economic entity, itself, by which to measure an alleged restraint of trade for antitrust purposes. (See International Boxing Club v. United States (1959), 358 U.S. 242, 3 L. Ed. 2d 270, 79 S. Ct. 245; United States v. Grinnell Corp. (1966), 384 U.S. 563, 572, 16 L. Ed. 2d 778, 787, 86 S. Ct. 1698, 1704.) We do not find the relevant market as defined by the State to be “transparently false” as the defendants assert. We, however, are not in a position to gauge the commercial reality and economic significance of the alleged relevant geographic market; conclusions should be drawn only after a thorough examination and careful consideration of the facts.

Count III

While defendants agree that count III was properly dismissed, they claim that the appellate court incorrectly determined what needs to be alleged in asserting the existence of a tying violation (a seller agrees to sell a particular product (the tying product) only on the condition that the purchaser agrees to buy another item (the tied product)) under section 3(4) of the Illinois Antitrust Act (Ill. Rev. Stat. 1977, ch. 38, par. 60-3(4)). People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, addressed this issue. In view of our decision in Schwulst, we need not discuss it in detail here. A violation under section 3(4) of the Act occurs if it is shown that the seller has sufficient economic power in the tying product or if a substantial amount of commerce in the tied product is restrained. People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 377.

Counts I and II of the amended complaint are sufficiently specific. The circuit court’s dismissal with prejudice was unwarranted. A cause of action should not be dismissed with prejudice unless it clearly appears that no set of facts can be proved which would entitle the plaintiff to relief. Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 305.

We affirm the appellate court’s holding that counts I and II of the amended complaint were improperly dismissed. The cause is remanded to the circuit court of McLean County for further proceedings consistent with this opinion.

Affirmed and remanded.

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


author: JUSTICE GOLDENHERSH

text:
    (No. 55229.
    THE TOWNSHIP OF APPANOOSE et al., Appellees, v. COUNTY SUPERVISOR OF ASSESSMENTS et al., Appellants.

      Opinion filed March 16, 1982.
    Rehearing denied May 27, 1982.

      Samuel Naylor VI, State’s Attorney, of Carthage, for appellant County Supervisor of Assessments.
    Tyrone C. Fahner, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of Chicago, of counsel), for appellant Department of Revenue.
    Hartzell, Glidden, Tucker & Neff, of Carthage (Stanley L. Tucker and Thomas W. O’Neal, of Carthage, of counsel), for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, the townships of Appanoose, Augusta, Bear Creek, Carthage, Chili, Durham, Hancock, Harmony, La Harpe, Pilot Grove, Pontoosuc, Prairie, Rock Creek, Rocky Run, Sonora, St. Albans, St. Marys, Walker and Wilcox, in Hancock County, filed an action in the circuit court of Hancock County against defendants, the Department of Revenue of the State of Illinois and the county supervisor of assessments for the County of Hancock, seeking a declaratory judgment that “An Act in relation to township and multitownship assessor” (Pub. Act 81 — 838) (hereafter Act) was unconstitutional and void. The circuit court held that the Act, as implemented by subsequent legislation and as applied here, was unconstitutional. The judgment was stayed pending appeal. Pursuant to Supreme Court Rule 302(a) (73 Ill. 2d R. 302(a)) defendants appealed directly to this court.

The Act, effective January 1, 1980, revised the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.) and, implemented by other legislation not here attacked, provides a statutory scheme for multitownship assessment districts comprised of contiguous townships, and with populations of not less than 1,000. It creates the office of multitownship assessor and provides for elections to that office; it provides that the county supervisor of assessments shall prepare maps suggesting multitownship assessment districts and that such maps shall be subject to the approval of township boards of trustees. In the event that a proposed district is not approved by the townships affected, provision is made for an alternative method of creating the district and for holding public hearings and the resolution of disputes. It provides that the several township boards of trustees comprising a multitownship district shall ex officio constitute a multitownship board of trustees for the respective assessment district; it establishes the powers and duties of the multitownship board of trustees with respect to property tax assessment administration matters, including the following:

“(1) the power to allocate the levy of taxes for 1981 and subsequent years necessary to provide the funds required by the budget adopted for the multi-township assessor, (2) the power to determine and approve the budget of the multi-township assessment district, (3) the power to determine a salary for its assessor, (4) the power to set the compensation of an assessor or multi-township assessor temporarily appointed by the supervisor of assessments to perform the functions of the office because the assessor is physically incapacitated ***.” (Ill. Rev. Stat. 1979, ch. 120, par. 482.3.)

It provides that once the board of trustees of a multitownship assessment district has determined the tax levy, the county clerk shall allocate the levy to each township in the multitownship assessment district on a proportional basis; it provides for the transition from the former to the new procedures in townships which become part of the multitownship assessment district; it provides procedures for preparation and adoption of budgets for multitownship assessors; it provides for salaries of multitownship assessors and authorizes them to make contracts and expend money in order to establish and maintain a detailed record system. It is alleged in plaintiffs’ amended complaint that pursuant to the Act maps have been prepared proposing multi township assessment districts comprised of the plaintiff townships.

The circuit court held that the legislation consolidates and merges the office of township assessor into the office of multitownship assessor, and effects the political consolidation and merger of one or more of the plaintiffs, without referendum, in violation of article VII, section 5, of the Constitution of 1970.

Article VII, section 5, provides:

“The General Assembly shall provide by law for the formation of townships in any county when approved by county-wide referendum. Townships may be consolidated or merged, and one or more townships may be dissolved or divided, when approved by referendum in each township affected. All townships in a county may be dissolved when approved by a referendum in the total area in which township officers are elected.” Ill. Const. 1970, art. VII, sec. 5.

Defendants contend that the Act does not effect a constitutionally prohibited consolidation or merger of townships, but that, rather, it is a legitimate exercise of legislative power to establish the structure of township government and to provide for the assessment and levy of real property taxes. Defendants argue that under the plain meanings of the terms, “consolidated” refers to situations where two or more townships are abolished and a new township is created, and “merged” refers to situations where one township absorbs another and remains in existence while the other is dissolved. Citing Springfield Lakeshore Improvement Association v. City of Springfield (1975), 62 Ill. 2d 173, defendants argue that since no townships are abolished or created under the Act, there has been no consolidation or merger without referendum.

Plaintiffs acknowledge their continued existence as townships and do not dispute the General Assembly’s revenue powers, or its power to create, alter or abolish public offices. Plaintiffs contend that the consolidation of the assessment function of township government without referendum is proscribed by section 5. They argue that under the provisions of the Constitution of 1970 townships became “independent unit[s] of local government with constitutional status”; that the constitutional provision “prohibits consolidation or merger of townships either directly or indirectly, completely or partially”; and that the Act results in “a de facto consolidation and merger of the political structure, offices, functions, assets, debts, powers, territory and inhabitants of the townships affected.”

In support of their contention that the consolidation of functions of township government is subject to the referendum requirement, plaintiffs cite the following passage from the explanation and discussion of section 5 by the Committee on Local Government as set forth in the proceedings of the constitutional convention: “This decision to require a referendum reflects the view that the form of local government should not be radically changed without the approval of those most directly affected by the change.” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1714-15.) The legislation, they argue, is contrary to the clearly expressed intent of the drafters. While acknowledging that the General Assembly has the power to totally withdraw the assessment function of townships, plaintiffs argue that it may not consolidate the assessment functions of townships without the referendum requirement of section 5.

In Hoffmann v. Clark (1977), 69 Ill. 2d 402, the court stated that the power to raise revenue through taxation is firmly vested in the General Assembly, both through its inherent powers and by specific grant of the 1970 Constitution; that the power to raise revenue is subject only to such limitations as are expressly stated in the Constitution; and that such express limitations are exclusive. This power includes the specific authority to establish the method of assessment for property tax purposes. To that end the General Assembly created the office of township assessor and, absent a constitutional limitation, may abolish the office, modify its functions, or limit its powers as it sees fit. Deal v. Nelson (1969), 43 Ill. 2d 192; see also Jordan v. Metropolitan Sanitary District (1958), 15 Ill. 2d 369, 382; Malloy v. City of Chicago (1938), 369 Ill. 97, 103; Groves v. Board of Education (1937), 367 Ill. 91, 97.

In People ex rel. Green v. Board of Commissioners (1898), 176 Ill. 576, the petitioner attacked the validity of a statute which terminated the power of the township supervisors, assessors and clerks to serve as town boards of review with powers to review and revise assessments of property. We find apropos this statement:

“The objection that the new Revenue law is in conflict with the provisions as to township organization is untenable. The whole modus oper andi of township organization is committed to the legislature, the constitution prescribing no particular form or officers, and the legislature has the power to fix and limit the powers of the township officers, and to modify them at will. To say that because the duties of the township assessor are changed by the new Revenue law, therefore township organization has been destroyed without a vote of the people on the subject is entirely without foundation. The whole scheme of township organization still remains.” 176 Ill. 576, 589.

For the reasons stated we find no referendum is required in order to create the multitownship assessment districts, and the judgment of the circuit court is reversed.

Judgment reversed.


text:
    (No. 54453.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BYRON DONALDSON, Appellee.

      Opinion filed April 16, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Joel A. Stein, Warren A. Zimmerman, and Michael E. Shabat, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, and John E. Horn, Assistant Public Defender, of Chicago, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, Byron Donaldson was convicted of attempted murder, armed violence, and three charges of aggravated battery. He was sentenced to serve five concurrent nine-year terms. On appeal the appellate court, in a Rule 23 order, vacated the conviction and sentence on one of the counts of aggravated battery and affirmed the other convictions (90 Ill. App. 3d 1198). We granted the People’s petition for leave to appeal. 73 Ill. 2d R. 315.

On November 10, 1978, Donaldson and Greg Smith, a codefendant, pursued Otis Matthews into a public bus. The defendant walked to the rear of the bus where Matthews was sitting and fired three shots at him, but each shot missed. There was a struggle between the defendant and Matthews, and the gun fell to the floor. Smith picked it up and fired at Matthews, wounding him in the abdomen. He fell to the floor, and Smith then shot him twice in the legs. The wounds were severe, necessitating three operations. Donaldson was charged by criminal information with attempted murder (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8-4) for firing at Matthews. Under the doctrine of accountability, he was charged, too, with aggravated battery causing great bodily harm (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a)), aggravated battery causing permanent disfigurement (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a)), aggravated battery using a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1)), and armed violence (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A-2). The armed violence charge was based on the aggravated battery causing great bodily harm charge. The conviction for aggravated battery using a deadly weapon was the one vacated by the appellate court.

No question regarding the attempted murder conviction is raised on this appeal.

The parties state that the three shots that struck Matthews constituted three separate acts and that each act could be the basis for conviction of a separate and distinct offense. The defendant was held responsible for Smith’s conduct on the ground of accountability (Ill. Rev. Stat. 1979, ch. 38, par. 5-1), and he was convicted on the three described charges of aggravated battery, each requiring different elements of proof, and on the one charge of armed violence. The only question before us is whether all four convictions can stand, considering that the four offenses have been carved, as decisions have described it, from only three distinct physical acts. In interpreting the armed violence statute the appellate court has handed down conflicting opinions on the problem involved. See, e.g., People v. Pearson (1981), 102 Ill. App. 3d 732, 738-41 (Downing, J., concurring in part and dissenting in part).

The People, citing, inter alia, Albernaz v. United States (1981), 450 U.S. 333, 67 L. Ed. 2d 275, 101 S. Ct. 1137, contend that the legislature intended to create armed violence as a separate and distinct offense from its underlying or predicate felony, and that where that intent is clear, a defendant may be separately convicted and separately sentenced for the two offenses. Further, it is argued that if the legislative intent is not clear, the standard or test enunciated in Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180, should be applied to ascertain the legislative intent. The Blockburger test has been used in determining whether there was a violation of Federal constitutional protection against double jeopardy by the imposition of multiple sentences for convictions arising from a single act. The defendant says that the rule in Blockburger should not be applied because our decisions afford an accused a larger protection against prejudice than is provided under the double jeopardy standard of the Constitution of the United States.

The elements of the offense of armed violence are simply stated: “A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois law.” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A-2.) From this it cannot be said that the legislature clearly intended to provide for the imposition of multiple convictions and sentences based on a single act. It is reasonable to say that the legislature intended only to increase or enhance the minimum penalty upon conviction of a felony when the violator was in possession of a dangerous weapon while committing the felony. The legislature certainly was aware of this court’s holdings that where there was a single act, there could be but one conviction of crime. (People v. Schlenger (1958), 13 Ill. 2d 63; People v. Scott (1969), 43 Ill. 2d 135; People v. Lilly (1974), 56 Ill. 2d 493.) If it were its intention the legislature could have expressly provided for separate convictions and sentences on charges of armed violence and its predicate or underlying felony. The Supreme Court in Bell v. United States (1955), 349 U.S. 81, 83, 99 L. Ed. 905, 910, 75 S. Ct. 620, 622 observed: “When Congress has the will it has no difficulty in expressing it — when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” This court follows a similar policy of lenity in the interpretation of criminal statutes. People v. Haron (1981), 85 Ill. 2d 261, 277-78.

The People’s reliance on Wayne County Prosecutor v. Recorder’s Court Judge (1979), 406 Mich. 374, 280 N.W.2d 793, is misplaced. Although Michigan’s felony-firearm statute, which was construed in Wayne County, resembles our armed violence statute, it is different in at least one important aspect. The court there noted that “[t] he statute decrees that any person carrying or possessing a firearm during a felony or attempted felony ‘is guilty of a felony’ and shall be imprisoned for two years. This two-year sentence must be imposed ‘in addition to’ the sentence for the felony or attempted felony and must be served ‘consecutively ’ to and ‘preceding’ the sentence for that crime.” (406 Mich. 374, 389, 280 N.W.2d 793, 795.) The Michigan legislature’s intent to make the violation of the felony-firearm statute a separate offense is clear. The court went on to distinguish what it considered as sentence enhancement statutes (habitual offender) and statutes which impose mandatory minimum sentences (armed robbery), each of which contains “no indication of an intent to establish a separate felony or require a consecutive sentence. The sentencing judge is merely required to impose a single sentence with a minimum term of at least two years.” (406 Mich. 374, 391, 280 N.W.2d 793, 796.) We consider that our armed violence statute enhances the mandatory minimum sentence to be imposed upon conviction of a felony.

The test laid down in Blockburger is not helpful to the People’s position. That test, which “is a ‘rule of statutory construction’” (Albernaz v. United States (1981), 450 U.S. 333, 340, 67 L. Ed. 2d 275, 282, 101 S. Ct. 1137, 1143) is that “*** where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” (284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182.) The underlying felony charge here, aggravated battery causing great bodily harm, does not require proof of a fact in addition to those required to prove the offense of armed violence based on the underlying felony of aggravated battery causing great bodily harm. One cannot violate the armed violence statute without first committing a felony. The alleging of that felony in the armed violence charge has the effect, upon conviction, of making it a necessarily included offense. See People v. Gray (1977), 69 Ill. 2d 44; People v. Smith (1980), 78 Ill. 2d 298; People v. Kavinsky (1981), 98 Ill. App. 3d People v. McNeal (1980), 88 Ill. App. 3d 20.

In the absence of a clear legislative expression to the contrary we hold that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges. A defendant is prejudiced “where more than one offense is carved from the same physical act.” (People v. King (1977), 66 Ill. 2d 551, 566; see also People v. Myers (1981), 85 Ill. 2d 281, 287.) Here convictions for both armed violence and aggravated battery causing great bodily harm were improper. Judgment should have been entered and sentence imposed only on the more serious offense. People v. Duszkewycz (1963), 27 Ill. 2d 257.

The appellate court had the misapprehension that the trial court imposed a single nine-year term and remanded the cause for resentencing. The record shows that the trial court imposed five concurrent nine-year terms. Remandment was unnecessary, and the portion of the appellate court’s judgment ordering it must be reversed.

The appellate court erroneously believed that aggravated battery using a deadly weapon was the underlying felony in the armed violence charge. In fact the underlying felony set out in the armed violence charge was aggravated battery causing great bodily harm. Thus, the court should have vacated the aggravated battery causing great bodily harm conviction; not the one charging aggravated battery using a deadly weapon.

For the reasons stated, we reverse: (1) that part of the appellate court judgment that vacated the conviction for aggravated battery using a deadly weapon; (2) that part of the judgment that affirmed the conviction for aggravated battery causing great bodily harm; (3) that part of the judgment that remanded the cause with directions as to sentencing. We affirm the balance of the judgment. The judgment of the circuit court is vacated as to the conviction for aggravated battery causing great bodily harm; the balance of the judgment is affirmed.

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