author: MR. JUSTICE RYAN

text:
    (Nos. 51455, 51476 cons.
    UNION ELECTRIC COMPANY, Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Appellees.-ILLINOIS BELL TELEPHONE COMPANY, Appellant, v. THE ILLINOIS COMMERCE COMMISSION, Appellee.

      Opinion filed October 2, 1979.
    Rehearing denied November 30, 1979.

      William E. Jaudes, of St. Louis, Missouri, and Robert Broderick, of Pope and Driemeyer, of Belleville, for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Richard K. Means and Hercules F. Bolos, Special Assistant Attorneys General, and Thomas J. Swabowski, Assistant Attorney General, all of Chicago, and Michael L. Ginsberg, of Snringfield, of counsel), for appellee Illinois Commerce Commission.
    Randall Robertson, of Lueders, Robertson 8c Konzen, of Granite City, and John P. Meyer and Linnea Johnson, of the law offices of John P. Meyer, of Danville, for appellees Cerro Copper Products et al.

    Justin A. Stanley, Robert A. Helman, Thomas N. Jersild, and Stephen J. Mattson, of Mayer, Brown & Platt, of Chicago, for amicus curiae Northern Illinois Gas Company.
    Joseph M. Wells, James Hinchliff, and Emmitt C. House, of Chicago, for amici curiae Peoples Gas Light & Coke Co. et al.

    Richard G. Ferguson, David J. Rosso, Boyd J. Springer, William T. Hart, Owen E. MacBride, and Edward J. Griffin (Isham, Lincoln & Beale; Schiff, Hardin 8c Waite; and Defrees 8c Fiske, of counsel), for amici curiae Central Illinois Light Co. et al.

    Donald H. Sharp, Thomas P. Hester, John W. McNulty, and Edward Butts, of Chicago (Ensel, Jones, Blanchard & LaBarre, of Springfield, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Richard K. Means and Hercules F. Bolos, Special Assistant Attorneys General, and Thomas J. Swabowski, Assistant Attorney General, all of Chicago, and Michael L. Ginsberg, of Springfield, of counsel), for appellee Illinois Commerce Commission.
    William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale, Edmund Hatfield, and Bernard Rane, Assistant Corporation Counsel, of counsel), for appellee city of Chicago.
   MR. JUSTICE RYAN

delivered the opinion of the court:

These consolidated cases involve the validity of rates established for two public utilities by the Illinois Commerce Commission. The primary issue concerns the elements used by the Commerce Commission in establishing the rate base of each utility. The order of the Commission in each case rejected the “fair value” concept as the appropriate method of determining the rate base and instead computed the rate base by applying the “original cost” method. The circuit court of Jersey County in cause No. 51455, involving Union Electric Company, and the circuit court of Sangamon County in cause No. 51476, involving Illinois Bell Telephone Company, reversed the Commission’s orders and held that the “fair value” method must be followed. The appellate court reversed the circuit courts and upheld the orders of the Commission, with one justice dissenting in each case. (64 Ill. App. 3d 700; 64 Ill. App. 3d 645.) We granted leave to appeal and consolidated the cases in this court. In addition to the rate-base issue, cause No. 51455 (Union Electric) also involves the question of whether the Commerce Commission erred in admitting into evidence a schedule of rates that had been recently established by the Missouri Public Service Commission for the customers of this utility in Missouri, and whether the Illinois Commerce Commission, by establishing the same rates for this utility’s customers in Illinois as the Missouri Commission had established for those customers in Missouri, erred. The circuit court of Jersey County also held the Commerce Commission erred in this respect, and the appellate court, also with one justice dissenting on this issue, reversed the trial court and upheld the Commission’s action. 64 Ill. App. 3d 700.

Section 30 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 30) grants to the Commission the power “to ascertain the value of the property” of a public utility. Section 32 of the Act requires that all the rates received by the utility “shall be just and reasonable.” Section 36 of the Act provides that the utility is entitled to a “reasonable return on the value of the property of said public utility as found by the Commission.” This court, in a series of cases beginning almost 60 years ago, has consistently interpreted “value” in the statute to mean “fair value” and not “original cost.”

In State Public Utilities Com. ex rel. City of Springfield v. Springfield Gas & Electric Co. (1919), 291 Ill. 209, this court, in considering the Commission’s power and duty to fix reasonable rates, stated:

“The basis of all calculations as to the reasonableness of rates to be charged by a corporation maintaining a public utility under legislative sanction must be the fair value of the property being used by it for the convenience of the public, and in order to ascertain that value the original cost of construction, the amount expended in permanent improvements, the present cost of construction, the probable earning capacity of the property under the particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration and are to be given such weight as may be just and right in each case.” (State Public Utilities Com. ex rel. City of Springfield v. Springfield Gas & Electric Co. (1919), 291 Ill. 209, 219.)

In Springfield Gas the contention was that value for rate-making purposes should be determined by the cost of reproduction new, less depreciation. This court rejected that contention and adopted the fair-value test, stating:

“Therefore it cannot be laid down as a rule without qualifications that cost of reproduction new, less depreciation, is the only basis of valuation for rate-making purposes. It is equally true that the original cost of construction, less depreciation, cannot be held to be the only proper basis for determination of valuation for rate-making purposes. *** [E] very element having any bearing on the situation must be considered in the investigation and then sound business judgment applied to the determination of a valuation that is fair and just to the consumer and the utility.” State Public Utilities Com. ex rel. City of Springfield v. Springfield Gas & Electric Co. (1919), 291 Ill. 209, 222.

Smyth v. Ames (1898), 169 U.S. 466, 42 L. Ed. 819, 18 S. Ct. 418, cited as authority in Springfield Gas, appears to have fathered the “fair value” approach to rate-base determination, an approach now apparently abandoned by the Supreme Court. The court in Smyth v. Ames was considering a constitutional due process question and was not construing a statute. In Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Com. (1923), 262 U.S. 276, 67 L. Ed. 981, 43 S. Ct. 544, the Supreme Court, in reversing an order of the Missouri Public Service Commission, stated that it is impossible to ascertain what will amount to a fair return upon properties of the utility devoted to public service without taking into consideration current costs. In a concurring opinion, Mr. Justice Brandéis criticized the fair-value rule of Smyth v. Ames and suggested that the rate of return be computed on the amount of capital prudently invested in the utility. It is this prudent-investment theory of Mr. Justice Brandéis which has fathered what is now commonly referred to as the “original cost” method of computing the rate base upon which a reasonable return is to be allowed. In Federal Power Com. v. Natural Gas Pipeline Co. (1942), 315 U.S. 575, 86 L. Ed. 1037, 62 S. Ct. 736, the court, in considering a statute, moved away from Smyth v. Ames and held that the Federal Power Commission, under the Natural Gas Act, was not bound to use any set formula in determining rates. In that case Mr. Justices Black, Douglas, and Murphy filed a concurring opinion again criticizing the fair-value principle of Smyth v. Ames, and voiced concern lest fair value be perpetuated in the judicial review provided in the Act. Finally in Federal Power Com. v. Hope Natural Gas Co. (1944), 320 U.S. 591, 88 L. Ed. 333, 64 S. Ct. 281, the court reversed a court of appeals holding which had found that the rate base established by the Federal Power Commission was defective in that it had not reflected the proper elements of present fair value. The Supreme Court held that if the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The court considered that it is the end result which is to be reviewed and not the method by which that result was obtained. Thus, in construing the Natural Gas Act, the Supreme Court ultimately abandoned its holding in Smyth v. Ames.

Though the Illinois court decided Springfield Gas well before the onset of the criticism of Smyth v. Ames in the cases cited above, and before Mr. Justice Brandéis suggested the prudent-capital-investment concept in his concurrence in Southwestern Bell Telephone Co., this court has adhered to the fair-value approach despite the demise of Smyth v. Ames in the Federal courts. In Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, decided long after Mr. Justice Brandéis’ criticism of Smyth v. Ames, this court again approved the fair-value method and stated that the elements considered by the Commission were proper elements to be taken into consideration in the evaluation of the utility’s property for “rate-making purposes,” and cited Smyth v. Ames. See Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 53. Later cases in this court continued to follow Smyth v. Ames.

In Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, the Commission, relying on Hope Natural Gas Co., urged that it should be permitted to use as the basis for the fixing of reasonable rates only the value of the investment, without regard to the present value of the company’s property. This court noted that the statutory language that rates and charges made by a public utility shall be “just and reasonable” has remained unchanged in the statute since the enactment of the Public Utilities Act in 1913. The court also noted that, in construing the statute, this court has held that the Commission must use a rate base which represents the fair value of the utility’s property. The court further observed that in 1933 the legislature had amended the Act by adding section 36, which specifically referred to a reasonable return upon “the value of said public utility’s property used *** in rendering its service to the public.” The court noted that thereafter, in Peoples Gas Light & Coke Co. v. Slattery, the court had held, as it had previously held, “that the determination of just and reasonable rates under the Illinois statute depends upon the present fair value of a utility’s property.” (Emphasis in original.) (Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, 289.) Because the Commission had failed to take into account current economic conditions, present price levels, and reproduction costs, and had failed to make specific findings upon which it predicated its conclusion, the cause was remanded by this court to the Commission.

In City of Chicago v. Illinois Commerce Com. (1954), 4 Ill. 2d 554, the same case again came before this court. As stated by the court:

“[T]he city’s [city of Chicago] argument consists, for the most part, in an attack upon the portion of our former opinion which adhered to the rule that the rates of this utility must earn a return upon the present value rather than on the original cost of its property.” (City of Chicago v. Illinois Commerce Com. (1954), 4 Ill. 2d 554, 557-58.)

The city relied upon Utah Power & Light Co. v. Public Service Com. (1944), 107 Utah 155, 152 P.2d 542. This court, in answer to the city’s argument, stated:

“It will suffice to say that the law of the State of Utah as expounded in that opinion does not comport with the law of the State of Illinois as shown by the opinions of this court. The Supreme Court of Utah held in substance, in that case, that all previous decisions of that court and of the Public Service Commission of Utah applying the present value rule in utility rate cases had been based wholly upon a construction of the due process clause of the Federal constitution, and not in any degree upon an interpretation of the statute of Utah creating the commission. It is not so in Illinois. For many years, this court has ruled that it is the duty of the Illinois Commerce Commission and its predecessor commissions, under the Public Utilities Act of this State, to allow a proper return upon the present fair value of utility property. In the previous opinion in this case [Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275], we referred to the leading case of Public Utilities Com. v. Springfield Gas and Electric Co. 291 Ill. 209, and said (414 Ill. at pp. 288-289): ‘In construing the statute this court held that the Commission must use a rate base which represents the present fair value of the utility property ***.’ ” (Emphasis was added in City of Chicago v. Illinois Commerce Com.) (City of Chicago v. Illinois Commerce Com. (1954), 4 Ill. 2d 554, 558.)

This court continued, stating:

“Though some jurisdictions have tended to vacillate on the question of the meaning of the Federal constitution as applied to public utility rates, a like vacillation on the part of this court is not reflected in its construction of the Public Utilities Act of this State.” City of Chicago v. Illinois Commerce Com. (1954), 4 Ill. 2d 554, 558-59.

In City of Alton v. Commerce Com. (1960), 19 Ill. 2d 76, the Commission established rates which would yield a 5.6% rate of return on a fair-value rate base. The circuit court reversed because this would result in a 17% return on the utility’s common stock valued at par. The circuit court assumed that the return on the original common stock investment was the relevant figúre in determining the reasonableness of an overall rate of return. This court, however, said:

“It is well established in Illinois that the utility is entitled to a reasonable overall return on the fair value of its property, not the original cost. This provides a flexible rate-making standard which is equally applicable in periods of rising and falling price levels. [Citation.] It would be inconsistent to judge the overall return on the basis of fair value but judge the return accruing to common shareholders on the basis of a par value which is essentially original cost. The significant figure is the rate of return on common stock valued at fair value.” City of Alton v. Commerce Com. (1960), 19 Ill. 2d 76, 86-87.

In Village of Milford v. Illinois Commerce Com. (1960), 20 Ill. 2d 556, the contention was that in determining fair value the Commission has erroneously computed fair value on original cost. This court said:

“While we do not approve so-called ‘original cost’ rate base, the commission properly gave it consideration in connection with ‘reproduction cost’ in determining fair value. There was evidence that the present cost would, for all practical purposes, be substantially the same as original cost because the plant was newly built at current prices and only a small per cent of the original plant, with perhaps a higher reproduction cost, was retained.” Village of Milford v. Illinois Commerce Com. (1960), 20 Ill. 2d 556, 562.

Finally, in City of Chicago v. Illinois Commerce Com. (1966), 34 Ill. 2d 49, 50-51, and in Du Page Utility Co. v. Illinois Commerce Com. (1971), 47 Ill. 2d 550, 553, this court adhered to its previous construction of the Act that the utility is entitled to a reasonable return on the basis of the fair value of the utility property.

The legislature has not voiced disapproval of this court’s interpretation of the Act. In 1921 the Public Utilities Act of 1913 was repealed by the Public Utilities Act of 1921, which reenacted the general regulatory provisions of the former act in substantially the same form. The 1921 act has been amended on numerous occasions. (See J. Mueller, Origin and Development of Public Utility Regulation in Illinois, Ill. Ann. Stat., ch. 111 2/3, at xii-xiii 8c n.25 (principal amendments listed).) As noted by this court in Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, 289, following the amendments, this court held, as it had held prior to the amendments, that the determination of just and reasonable rates under the Illinois statute must be based upon the present fair value of a utility’s property.

Those who urge the approval of the Commission’s orders in these consolidated cases argue that we should not be concerned with the methodology but only with the end result. In other words, they argue that if the method used by the Commission produces the statutory requirement of a reasonable return, the court cannot be concerned with the method adopted by the Commission to achieve that result. They say that whether it followed the fair-value method or the original-cost method of establishing the rate base is a matter of discretion vested in the Commission. The proponents of the Commission orders, in support of this argument, rely upon Federal Power Com. v. Natural Gas Pipeline Co. and Federal Power Com. v. Hope Natural Gas Co. This court rejected a similar argument in City of Alton v. Illinois Commerce Com., where it stated:

“The Commission objects particularly to setting aside its order because of purported errors in computing reproduction value less depreciation when the final fair value determination is not challenged as unreasonable. It argues that if the final determination is reasonable the courts should not inquire into the separate elements of value which are considered in reaching that finding. This position ignores the right of the parties and the public not just to a reasonable determination but rather to a determination which arises from sound and lawful analysis of the problems presented. Without power to review the intermediate steps in the administrative decision-making process, effective judicial review would be extremely difficult if not impossible. Neither the statute nor this court’s decisions in the rate regulation field indicate that such a result is intended. This court has not confined its review to the Commission’s final order but rather, when called upon to do so and with respect for the Commission’s expert judgment, it has reviewed the elements of value considered by the Commission in computing present fair value.” City of Alton v. Commerce Com. (1960), 19 Ill. 2d 76, 80-81.

The proponents of the Commission’s orders have presented two totally inconsistent arguments. The first argues that the Commission complied with a fair-value standard. The later argument urges this court to abandon its previous adoption of the fair-value method and to accept the original-cost method of determining rate base.

The first argument contends that in these cases the Commission, in fixing the rate base, complied with the previous holdings of this court which have held that the fair value and not original cost was the proper rate-base method. They argue that the Commission did, in fact, consider evidence of reproduction costs as required by our cases and rejected it, finding that the evidence of original cost was more reliable in fixing the fair-value rate base. This argument is not sound. The concept of fair value holds that it is the value of the utility’s property devoted to public service upon which the reasonable rate must be returned. It is a value concept and not a cost concept. Stating it briefly, a cost rate base reflects the amount of invested capital, whereas a value rate basis reflects the value of assets which the utility has devoted to serving the public. (See J. Bonbright, Principles of Public Utility Rates 161, 224 (1961).) One is a property approach; the other is a fund approach. (See Webb, Utility Rate Base Valuation In An Inflationary Economy, 28 Baylor L. Rev. 823, 840 (1976).) This is the distinction which Mr. Justice Brandéis made in his concurring opinion in Southwestern Bell Telephone Co., where he stated that it is not specific property that is devoted to public use but capital, that the return should be upon the capital invested and not on the value of the property, and that the return should be computed on the amount of capital prudently invested.

“Fair value” is a highly technical term of art. It is not diametrically opposed to original cost. In determining fair value, original cost and reproduction cost are but two of the several elements that must be considered. Neither alone constitutes the measure of fair value. Just as this court has rejected original cost, less depreciation, as determinative of fair value, it has also rejected as the measure of fair value reproduction cost new, less depreciation. (See the opinions of the court cited above.) Thus, the contention of the Commission and the intervenors that in fixing the rate base the Commission complied with the previous holdings of this court by “considering” the reproduction-cost evidence and rejecting it, and computing the fair-value rate base on original cost is unsound in fact and in theory. It has not set a fair-value rate base. It has instead set an original-cost rate base. It is not the reproduction-cost evidence which the Commission rejected. It is the fair-value method of determining the rate base which was rejected in favor of the original cost.

In 1973 the Illinois Commerce Commission, in a rate case entitled In re Central Illinois Public Service Company, No. 57300 (Illinois Commerce Commission 1973), Util. L. Rep., State (C.C.H.) par. 21900 (1973), acknowledged that Illinois is a State that still uses the “fair value” method of valuing property of utilities in the determinination of the rate base upon which a reasonable return is to be computed. The Commission concluded, however, that in its judgment the “original cost” method best accomplishes the obligations of the Commission. It therefore rejected the “fair value” method and adopted the “original cost” method. In both of the cases now before this court the Commission, in its orders, referred to its 1973 order in the Central Illinois Public Service Company case and specifically stated that it adheres to its conclusion in that case. The arguments now that the Commission had, in fact, complied with the previous holdings of this court by “considering” and rejecting reproduction cost is contradicted by the very language of these orders.

The second argument advanced by the Commission’s proponents urges us to abandon the fair-value rate-base method and to adopt the original-cost rate-base method. The superiority of the latter method has been argued at length. We have also been reminded in the briefs and in oral argument that 38 other jurisdictions now follow the original-cost method.

The dispute concerning the fair-value method as against the original-cost method has been described as the “ ‘most widely disputed legal issue in the history of American public utility regulation’.” (1 A. Priest, Principles of Public Utility Regulation 166 (1969).) Although it is apparent that a majority of the jurisdictions use the original-cost method, Professor Priest has observed that the States still following the fair-value method “are, in the aggregate, probably more significant commercially than their original cost sisters.” 1 A. Priest, Principles of Public Utility Regulation 166 (1969).

We need not in this opinion enter into this rate controversy and present the relative merits of the two methods; nor need we speculate which of the two methods we would accept were we writing on a clean slate. The previous decisions of this court, which we have set out at length above, demonstrate that our statute has been consistently construed as requiring that the reasonable return to the utility be based on the fair value of its property. Springfield Gas placed this construction on our 1913 act. The act of 1921 repealed the 1913 act but reenacted a substantial portion of its regulatory provisions. Peoples Gas Light & Coke Co. v. Slattery thereafter placed the same construction on the 1921 act. Neither in the reenactment nor in the several amendments to the 1921 act has the legislature suggested any dissatisfaction with this construction.

It is well established that the reenactment of a statute which has been judicially construed is in effect an adoption of that construction by the legislature unless a contrary intent appears. (Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507; Hupp v. Gray (1978), 73 Ill. 2d 78; Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165.) In view of the history of the Act and the steadfast adherence by this court for almost 60 years to the present-value method, it is appropriate to paraphrase the language of Mr. Justice Blackmun in Flood v. Kuhn (1972), 407 U.S. 258, 32 L. Ed. 2d 728, 92 S. Ct. 2099. If there are evils in the present-value method which warrant its abandonment in favor of the original-cost method, the change should be by legislation. (See also New York Telephone Co. v. Public Service Com. (1956), 309 N.Y. 569, 132 N.E.2d 847.) We invite the legislature’s consideration of these two competing methods of computing rate base.

Although it has been argued that mere inaction by the legislature following a judicial construction does not of itself indicate acquiescence (see R. Dickerson, The Interpretation and Application of Statutes 255 (1975)), the repeated restatement -by this court of the statutory interpretation over an extended period of time strengthens the presumption of acquiescence in the face of inaction by the legislature. (See, e.g., Schaefer, Precedent and Policy, 34 U. Chi. L. Rev. 3, 11 (1966).) When we also consider the reenactment of the Act and the several amendments to it without a suggestion of disagreement with this construction, inaction by the legislature strongly suggests agreement. Under these facts it would appear to be an usurpation of legislative power for this court now to abandon the fair-value method and apply the original-cost method. The construction this court has placed upon the Act has in effect become a part of the Act, and a change in that construction by this court would amount to amending the statute. The power to accomplish this does not lie in the courts. See generally, R. Dickerson, The Interpretation and Application of Statutes 252-55 (1975); E. Levi, An Introduction to Legal Reasoning 27-57 (1949); 2A Sutherland, Statutes and Statutory Construction sec. 49.05 (4th ed. 1973); Agusti, The Effect of Prior Judicial and Administrative Constructions on Codification of PreExisting Federal Statutes: The Case of the Federal Securities Code, 15 Harv. J. Legis. 367 (1978); Horack, Congressional Silence: A Tool of Judicial Supremacy, 25 Tex. L. Rev. 247 (1947); Rogers, Judicial Reinterpretation of Statutes: The Example of Baseball and the Antitrust Laws, 14 Houston L. Rev. 611 (1977).

As conclusive as we feel stare decisis is in the determination of this case, we do not view the rule as being absolute and without exception in all cases where statutes have been construed by the courts. The United States Supreme Court has delineated several areas where prior judicial statutory constructions should not be controlling. (See Monell v. Department of Social Services (1978), 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018; United States v. Reliable Transfer Co. (1975), 421 U.S. 397, 44 L. Ed. 2d 251, 95 S. Ct. 1708; Swift & Co. v. Wickham (1965), 382 U.S. 111, 15 L. Ed. 2d 194, 86 S. Ct. 258; Smith v. Evening News Association (1962), 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267; James v. United States (1961), 366 U.S. 213, 6 L. Ed. 2d 246, 81 S. Ct. 1052; Mahnich v. Southern Steamship Co. (1944), 321 U.S. 96, 88 L. Ed. 561, 64 S. Ct. 455.) Exceptions have also been recognized by this court. (See Gannon v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1961), 22 Ill. 2d 305; Nudd v. Matsoukas (1956), 7 Ill. 2d 608; Doggett v. North American Life Insurance Co. (1947), 396 Ill. 354.) Clearly, none of these exceptions are applicable in the cases now before us. We must therefore follow the substantial body of precedent which supports the fair-value method of computing the rate base.

Union Electric Company is a utility engaged in the business of generating and supplying electric energy in Missouri, Illinois and Iowa. Approximately 90% of its customers are in Missouri and approximately 10% in Illinois, with only a small number being in Iowa. In 1975 the utility filed in both Illinois and Missouri proposals for general rate increases. Throughout the year of 1975 hearings were held before the Illinois Commerce Commission. Briefs were filed on behalf of all parties by December 10, 1975, and oral argument was held before the Commission December 16, 1975. The Missouri Commission entered its order on the utility’s proposed rate increase in that State on December 22, 1975. The rates filed by Union Electric in compliance with the Missouri order were filed by the Illinois Commerce Commission’s engineering staff in this proceeding, and the schedule was admitted into evidence by the Commission as a “late-filed exhibit.”The order entered by the Illinois Commerce Commission directed that Union Electric file rate schedules containing the rates set out in an appendix to the order. These rates coincided with those filed pursuant to the Missouri order. In its order the Illinois Commerce Commission stated:

“Under traditional rate-making procedures, this Commission would approve rates and tariffs which would yield an acceptable rate of return on the value of the utilities property used and useful in serving Illinois rate payers. The peculiar circumstances of this utility’s operations in Illinois and Missouri, however, render such consideration impossible in this instance without imposing unjust and unreasonable discriminationatory rates on Illinois rate payers.”

It is contended by the proponents of the order that, if the Illinois Commerce Commission were to approve rates higher than those approved by the Missouri Commission, such a schedule would be in violation of section 38 of our Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 38), which prohibits a utility from charging rates which discriminate against classes or localities. We do not view section 38 as being applicable in this situation. The Commission properly noted in its order that the difficulty lies in the absence of bi-State or multi-State regulations authorized by law to provide a manner in which discrimination in rates between customers in different States may be prevented. To hold that section 38 of the Act requires the Illinois Commerce Commission to conform the rates that it approves to those approved by the Missouri Commission would, in effect, constitute a violation of the provisions of other sections of the Act.

Section 36 of the Public Utilities Act requires that the rates set or approved by the Commission be such as to provide a reasonable rate of return on the value of the property of the utility as found by the Commission. There is no authority given to the Commission to defer to the judgment of a commission of another State which may have established or approved rates for users of a utility in that State lower than those proposed by the same utility for its service in Illinois. The sole power of the Commission stems from the statute, and it has power and jurisdiction only to determine facts and make orders concerning the matters specified in the statute. (Lowden v. Illinois Commerce Com. (1941), 376 Ill. 225, 230.) The statute places the duty upon the Commission to determine the present value of the utility’s property used and useful in serving Illinois ratepayers and the statute requires that the rates approved by the Commission provide a reasonable return on the value of that property. That authority cannot be delegated to the Missouri Public Service Commission. This is not to say that after the fair value of the property of the utility devoted to the service of the public in Illinois has been ascertained the Commission, in establishing Union Electric’s schedule of charges for Illinois customers, could not consider the rates established by the Missouri Commission, provided those rates produce a reasonable return on the value of the utility’s property as ascertained by the Illinois Commission. However, to first accept the Missouri charges or rates would, in effect, be reasoning backwards to the Commission’s finding of the proper rate base and then to a fair return. See J. Bonbright, Principles of Public Utility Rates 138 (1961).

For the reasons stated herein, the judgments of the appellate court are reversed, the judgments of the circuit courts are affirmed, and the causes are remanded to the Illinois Commerce Commission for further proceedings in accordance with this opinion.

Appellate court reversed; circuit courts affirmed; cause remanded, with directions.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 51223.
    ALLSTATE INSURANCE COMPANY, Appellant, v. HELEN F. ELKINS, Appellee.

      Opinion filed October 19, 1979.
    Rehearing denied November 30, 1979.

      RYAN and UNDERWOOD, JJ., dissenting.
    John L. Kirkland, Thomas M. Hamilton, Jr., and Stanley J. Davidson, of Hinshaw, Curlbertson, Moelmann, Hoban & Fuller, of Chicago, for appellant.
    John C. Ambrose, of Chicago (F. John Cushing III, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Helen F. Elkins, appealed from the judgment of the circuit court of Cook County entered upon allowance of the motion for summary judgment of plaintiff, Allstate Insurance Company, in its action for declaratory judgment. The appellate court reversed and remanded (63 Ill. App. 3d 62), and we allowed plaintiff’s petition for leave to appeal.

Defendant and her minor daughter, Beverly, were injured while riding in an automobile being driven by defendant’s husband, Dorsey Elkins, which collided with another automobile. In force at that time was an automobile liability insurance policy issued by plaintiff to Dorsey Elkins as the named insured, under the terms of which defendant was also an “insured.” The uninsured motorist coverage portion of the policy provided:

“Allstate will pay all sums which the insured *** shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile *** caused by accident and arising out of the *** use of such uninsured automobile ***.”

The liability provisions of the policy contained the following exclusion:

“bodily injury to any person who is related by blood, marriage, or adoption to an insured against whom claim is made if such person resides in the same household as such insured.”

The parties are in agreement that by reason of this exclusion Dorsey Elkins was “uninsured” with respect to his wife and daughter. Defendant and Beverly filed claims under the uninsured motorist coverage, plaintiff refused payment, and the claims were submitted to arbitration. It cannot be determined from the record the extent, if any, to which plaintiff participated in the arbitration proceedings. Prior to the time that the arbitrator rendered his decision, plaintiff filed this action for declaratory judgment. The arbitrator awarded Beverly $1,300, and found that the value of defendant’s injury was $18,500. The arbitrator held, however, that because Dorsey Elkins was immune from suit by defendant (Ill. Rev. Stat. 1973, ch. 68, par. 1), she was not “legally entitled to recover” damages from him. There was no action taken to vacate or modify the arbitrator’s decision. The circuit court held that because of the interspousal immunity provisions of the statute (Ill. Rev. Stat. 1973, ch. 68, par. 1), defendant was not legally entitled to recover for injuries caused in the collision, and that her failure to file a timely proceeding to vacate the arbitrator’s decision rendered it final and binding on the parties.

The appellate court reversed and remanded, holding that the question whether interspousal immunity precluded defendant from recovering under the uninsured motorist provision was beyond the authority of the arbitrator to decide and that the defense of interspousal immunity could not be raised by a third party. The appellate court interpreted the words “legally entitled to recover” “to mean that the plaintiff must be able to establish fault on the part of the uninsured motorist which gives rise to damages.” 63 Ill. App. 3d 62, 66.

Plaintiff contends that because of the statutory interspousal tort immunity created by section 1 of “An Act to revise the law in relation to husband and wife” (Illl. Rev. Stat. 1973, ch. 68, par. 1), which provided that “neither husband nor wife may sue the other for a tort to the person committed during coverture,” defendant is not a person “legally entitled to recover damages” within the meaning of the policy provisions. Plaintiff contends, too, that because defendant failed to file an application to vacate the decision of the arbitrator pursuant to the provisions of section 12(b) of the Uniform Arbitration Act (Ill. Rev. Stat. 1977, ch. 10, par. 112(b)) within 90 days after the decision was rendered (Ill. Rev. Stat. 1977, ch. 10, par. 112(b)) the decision of the arbitrator in favor of plaintiff was final and binding on defendant.

It is defendant’s position that the interspousal immunity provision of the statute applies only to situations where one spouse attempts to recover in tort from the other and is not applicable to a claim based upon a contractual right against a third party, her spouse’s insurer. Defendant argues, too, that the failure to seek to vacate the decision of the arbitrator within 90 days was excused by the fact that plaintiff had initiated this action in declaratory judgment while the arbitration was pending, and that the arbitrator’s decision was void because he exceeded his jurisdiction in deciding a coverage dispute which was not a matter subject to arbitration, but a question of law to be decided by the courts.

The precise question presented has not previously been decided in this jurisdiction and the parties have cited a number of authorities from other jurisdictions. An analysis of the cases shows that recovery has been permitted when the claimant shows conduct on the part of the tortfeasor spouse which would entitle the claimant to recover damages even though a defense available to the tortfeasor would defeat actual recovery. Thus in Guillot v. Travelers Indemnity Co. (La. App. 1976), 338 So. 2d 334, it was held that the doctrine of interspousal immunity did not bar the wife’s recovery under an uninsured motorist endorsement because the defense was personal to the tortfeasor spouse and was not available to his insurer. In De Luca v. Motor Vehicle Accident Indemnification Corp. (1966), 17 N.Y.2d 76, 215 N.E.2d 482, and Sahloff v. Western Casualty & Surety Co. (1969), 45 Wis. 2d 60, 171 N.W.2d 914, it was held that although the uninsured motorist, in an action against him, could have availed himself of a defense based upon the statute of limitations, that defense was not available to his insurer.

In order to prevail the claimant must be able to show her right to recover. Thus in Markham v. State Farm Mutual Automobile Insurance Co. (10th Cir. 1972), 464 F.2d 703, the court held that plaintiff, injured as the result of the operation of an automobile by her daughter, was not “legally entitled to recover damages” from the operator of the automobile for the reason that under Oklahoma law a parent has no cause of action based upon tort against an unemancipated child. In Country Mutual Insurance Co. v. National Bank (1969), 109 Ill. App. 2d 133, and Bocek v. Inter-Insurance Exchange of the Chicago Motor Club (1977),---Ind. App.---, 369 N.E.2d 1093, it was held that bringing an action for wrongful death within the two-year statute of limitations was a condition of the cause of action and failure to seek arbitration within that period served to bar uninsured motorist claims. Plaintiff has cited Nolan v. Farmers Insurance Exchange (Mo. App. 1967), 413 S.W.2d 530, which involved an insurance policy which provided that the insurer would pay all sums “which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injuries sustained by the insured caused by the accident ***.” The Missouri Court of Appeals, holding that neither spouse may maintain a civil action against the other based upon tort occurring during coverture, denied the wife’s claim. Whether the inability to recover results from a holding that the claimant had no cause of action or that the tortfeasor spouse was immune to suit, the distinction between a policy provision for payment of sums which the insured “shall be legally entitled to recover” and one which provides for payment of those sums which the uninsured motorist “would be legally responsible to pay” is readily apparent, and we do not find Nolan persuasive.

From our examination of the authorities we conclude that prior to the 1953 amendment of the statute (Ill. Rev. Stat. 1951, ch. 68, par. 1) one spouse could bring an action in tort against the other during coverture (Brandt v. Keller (1952), 413 Ill. 503) and that the effect of the 1953 amendment was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.

We agree with the appellate court that the proper interpretation of the words “legally entitled to recover” means that the claimant must be able to prove the elements of her claim necessary to entitle her to recover damages. That the tortfeasor uninsured motorist in an action brought against him might be in a position to invoke a defense of limitations or some form of statutory immunity is relevant to the question of the right to enforce payment, but does not affect the claimant’s legal entitlement to recovery. In interpreting the provisions of an insurance policy the intent of the parties is the most significant factor and any ambiguity should be construed in favor of the insured. (Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11.) As we have heretofore noted, the parties are in agreement that the exclusion contained in the liability provisions of the policy served to render defendant’s husband an uninsured motorist. We find it difficult to agree that it was the intent of the parties that the exclusion invoke the uninsured motorist coverage and at the same time preclude recovery by the injured spouse on the basis of statutory interspousal immunity.

We consider next plaintiff’s contention that defendant’s failure to move to vacate the arbitrator’s decision within 90 days rendered the award final and the declaratory judgment action moot. Plaintiff instituted the action for declaratory judgment prior to the decision of the arbitrator and sought to stay the arbitration and obtain a determination by the court concerning the rights and liabilities of the parties. Because the declaratory judgment action involved precisely the same issue which the arbitrator decided, the filing of any further action on the part of defendant would have been a useless act. Under the circumstances shown, plaintiff is hardly in a position to seek the protection of an arbitrator’s award which it sought by this action to invalidate. In view of the conclusion reached, we need not consider whether the coverage question presented was appropriately one for arbitration. Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91.

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

Judgment affirmed.

MR. JUSTICE RYAN,

dissenting:

I must dissent from the opinion adopted by the majority because it totally ignores the previous construetion which this court has given to the statute in question (Ill. Rev. Stat. 1973, ch. 68, par. 1, now found in Ill. Rev. Stat. 1977, ch. 40, par. 1001). The General Assembly has acquiesced in this construction for almost 20 years. We are therefore not free to now say that the statute means something different just because it is being applied in a different context. The opinion states:

“From our examination of the authorities we conclude that prior to the 1953 amendment of the statute (Ill. Rev. Stat. 1951, ch. 68, par. 1) one spouse could bring an action in tort against the other during coverture (Brandt v. Keller (1952), 413 Ill. 503) and that the effect of the 1953 amendment was not to destroy the cause of action of the injured spouse but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.” (Emphasis added.) 77 Ill. 2d at 390.

Almost 20 years ago, in Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, in construing this same statute, this court stated:

“The legislature created a statutory disability during the lifetime of the parties. Its intent was to prevent a cause of action from coming into being. If a cause of action could not exist in favor of the wife and against the tort-feasor husband, it could not survive his death.” (Emphasis added.) (Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 193.)

The holding of Heckendorn was reaffirmed by this court 6 years later in Wartell v. Formusa (1966), 34 Ill. 2d 57, and, as noted later in this dissent, has been acknowledged by the court as being the accepted construction of this statute. Thus, the statute has not been construed as creating an immunity from suit that can be raised as a defense or waived by one spouse when sued by the other, as the majority opinion holds. Under the previous construction, the cause of action does not exist in favor of the injured spouse against the tortfeasor. Under our previous construction, the fact that the uninsured motorist provision of an insurance policy permits payment of the sum the insured “shall be legally entitled to recover” would not, in our case, permit the injured wife to recover under the policy, because she has no cause of action against her husband and therefore is not legally entitled to recover from him.

The majority opinion distinguishes Markham v. State Farm Mutual Automobile Insurance Co. (10th Cir. 1972), 464 F.2d 703, pointing out that “under Oklahoma law a parent has no cause of action based upon tort against an unemancipated child.” (77 Ill. 2d at 389.) The distinction is nonexistent because, under the previous construction placed on our statute, the wife has no cause of action in tort against her husband.

At this term, our court adopted an opinion in Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364. In that case we held that the previous construction which had been placed on section 30 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 30) precluded us from considering the relative merits of the “original cost” method as against the “fair value” method of determining rate base for the utilities. We there stated that we need not speculate which of the two methods we would accept “were we writing on a clean slate.” (77 Ill. 2d 364, 379.) The previous decisions of this court consistently construed the statute as requiring that the reasonable return to the utility be based on the “fair value” of its property. We stated that under these facts it would be a usurpation of legislative power for this court to now abandon the “fair value” method and apply the “original cost” method:

“The construction this court has placed upon the Act has in effect become a part of the Act, and a change in that construction by this court would amount to amending the statute. The power to accomplish this does not lie in the courts. [Citations.] ” 77 Ill. 2d 364, 381.

The same reasoning applies to the statute in question (Ill. Rev. Stat. 1973, ch. 68, par. 1). The part of that statute involved in this litigation — “provided, that neither husband nor wife may sue the other for a tort to the person committed during coverture” — was not in the original enactment. It was added in 1953 in response to this court’s holding in Brandt v. Keller (1952), 413 Ill. 503, in which this court construed the statute (sometimes called the married woman’s act of 1874 (Ill. Rev. Stat. 1951, ch. 68, par. 1)) as removing a married woman’s common law disability and permitting her to sue her husband. In Heckendorn this court noted that, in the next session of the General Assembly following the decision in Brandt, the statute was amended by adding the priviso set out above and under consideration in this case. In Heckendorn this court stated the legislative intent in amending the statute was to prevent a cause of action from coming into being. As noted above, this construction was followed by this court in Wartell v. Formusa. In Packenham v. Miltimore (1967), 89 Ill. App. 2d 452, 455, the appellate court noted that Heckendorn had construed the 1953 amendment as barring “the cause of action from coming into being.” Also, in Herget National Bank v. Berardi (1976), 64 Ill. 2d 467, this court, referring to its previous decisions in Heckendorn and Wartell, stated:

“This court held in each case that the action was barred by the amendment enacted after the decision in Brandt. ” (Emphasis added.) (Herget National Bank v. Berardi (1976), 64 Ill. 2d 467, 472.)

Thus, since this court’s construction of the amendment in 1960, it has been the consistent interpretation of the language we are now considering that the 1953 amendment prevented the cause of action from coming into being. The amendment has not been construed as the majority opinion now holds — that the wife has a cause of action and that the amendment creates an immunity which the husband may waive.

The majority opinion does not cite Heckendorn, Wartell, Herget National Bank or Packenham. It also does not suggest why the construction placed upon the statute by those cases should now be abandoned after a 20-year history of acceptance.

We also note that the statute has been amended at various times since this court’s decision in Heckendorn. However, the language which was construed in Heckendorn has not been changed. As we pointed in Union Electric, adopted by this court at this term, subsequent amendments to an act without changes in language that this court has construed are strong evidence that the construction conforms to the legislative intent.

As we stated in Union Electric, the construction has now become a part of the statute which we are not at liberty to change. I fear the majority opinion has usurped the authority of the legislature by now giving an entirely different meaning to the statute under consideration. I must therefore respectfully dissent.

MR. JUSTICE UNDERWOOD joins in this dissent.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51201.
    (No. 51230.
    (No. 51256.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ODIE CROSS, JR., Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TOM HAYWOOD, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROBERT THOMAS, Appellee.

      Opinion filed October 19, 1979.
    Modified on denial of rehearing November 30, 1979.

      William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Gerri Papushkewych, Assistant Attorneys General, and Keith P. Vanden Dooren, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    John H. Reid, Deputy Defender, and Robert E. Davison, of the Office of the State Appellate Defender, of Springfield, for appellee.
    William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Gerri Papushkewych, Assistant Attorneys General, and Raymond F. Buckley, Jr., and Ann E. Singleton, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    John H. Reid, Deputy Defender, and Robert E. Davison, of the Office of the State Appellate Defender, of Springfield, for appellee.

      William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Gerri Papushkewych, Assistant Attorneys General, and Raymond F. Buckley, Jr., and Ann E. Singleton, of the State's Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Marc M. Barnett, Marvin J. Glass, Dennis A. Berkson, and Charles K. Piet, of Barnett, Ettiger, Glass, Berkson & Braverman, Ltd., of Chicago, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

The primary issue raised in these three consolidated cases is whether the appellate court properly held that entrapment exists as a matter of law whenever a government informer supplies a controlled substance to an individual who is later prosecuted for the sale of that substance. Defendant Odie Cross, Jr., was convicted in a jury trial of the unlawful delivery of less than 30 grams of a substance containing heroin (Ill. Rev. Stat. 1975, ch. 56½, par. 1401(b)) and was sentenced to a term of imprisonment of two to six years, defendant Tom Haywood was convicted in a bench trial of the unlawful delivery of 30 grams or more of a substance containing lysergic acid diethylamide (LSD) (Ill. Rev. Stat. 1975, ch. 56½, par. 1401(a)(8)) and was sentenced to a term of imprisonment of four years to four years and one day, and defendant Robert Thomas pleaded guilty to a charge of unlawful delivery of 30 grams or more of LSD (Ill. Rev. Stat. 1973, ch. 56y2, par. 1401(a)(8)) and was sentenced to a term of imprisonment of four to six years. All proceedings took place in the circuit court of St. Clair County. The appellate court reversed the convictions of defendants Cross (63 Ill. App. 3d 628), Haywood (63 Ill. App. 3d 352), and Thomas (61 Ill. App. 3d 1112 (Rule 23 order)) because of its findings of entrapment, and we allowed the State’s petition for leave to appeal in each case.

Although the facts in these cases differ in most respects, they each involve the prosecution of an individual who claims to have been supplied with a controlled substance by a government informer and who, after selling the substance, was arrested. Defendant Thomas failed to raise this entrapment issue in his motion to withdraw his guilty plea, however, referring only to a deprivation “of a crucial defense.” The argument is waived. (58 Ill. 2d R. 604(d).) Our discussion of entrapment is therefore limited to defendants Cross and Haywood. They raised the defense of entrapment in the circuit court, and it therefore became incumbent upon the State to prove beyond a reasonable doubt that entrapment did not occur (People v. Dollen (1972), 53 Ill. 2d 280, 284). In attempting to meet this requirement, the State offered evidence of the defendants’ predisposition to commit the offense.

In reversing the judgments of conviction, the appellate court interpreted this court’s decisions in Dollen and People v. Strong (1961), 21 Ill. 2d 320, as establishing a per se rule of entrapment whenever a government informer supplies a controlled substance to an individual who is later prosecuted for the unlawful delivery thereof. Although this application of the Dollen and Strong opinions may well be justified in light of language contained therein, we do not believe that the court in Strong intended to create a per se rule, and the language in Dollen so interpreting Strong is in error.

In Strong, the court approved of the entrapment defense in a prosecution for unlawful possession and sale of heroin where the defendant’s “only sale was of narcotics supplied to him by an informer in the employ of the government.” (People v. Strong (1961), 21 Ill. 2d 320, 326.) Implicit in this holding was a finding that the defendant was not predisposed to commit the offense. It there appeared from the evidence that the drug sale in question was the defendant’s sole experience with the unlawful distribution of heroin:

“The defendant testified that the informer, Reynolds, brought a package to his room and left it there without explaining what it contained, saying that he would return in about 45 minutes. Reynolds did return in that time accompanied by [Federal agent] Johnson. Reynolds asked the defendant to give the package to Johnson, which he did, whereupon Johnson gave the defendant $50. The defendant said that the money should go to Reynolds but Reynolds asked the defendant to keep the money and bring it to him that evening. He testified that he took the money to Reynolds later that day. The defendant testified that he did not knowingly sell agent Johnson any narcotics because he was not in the business, did not have any narcotics, did not know where to obtain any and had nothing to do with narcotics.” (21 Ill. 2d 320, 323.)

In reaching its decision, however, the court said:

“While we are sympathetic to the problems of enforcement agencies in controlling the narcotics traffic, and their use of informers to that end, we cannot condone the action of one acting for the government in supplying the very narcotics that gave rise to the alleged offense. We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the sine qua non of the offense.” 21 Ill. 2d 320, 325.

Dollen, too, is somewhat ambiguous because it interprets Strong as espousing a per se rule of entrapment, yet at the same time the court’s opinion inquires deeply into the question of whether the defendant was predisposed to commit the offense. The court says in one passage, “In Strong, we held that a conviction for the unlawful sale of narcotics cannot stand when the informer supplies the drugs.” (53 Ill. 2d 280, 284.) Shortly thereafter, however, the court states:

“In the present case the testimony of defendant and Elmer Davis clearly indicates that defendant [a taxi dispatcher] innocently gained possession of the narcotics during a routine inspection of the vehicle driven by [informer] Wright. Defendant apparently had no prior history of narcotics involvement until this time. Wright, who immediately after the discovery suggested that he could find a buyer, also possessed an unparalleled opportunity to place the package in his vehicle. Moreover, the testimony of agent Norton and defendant confirms that Wright actively negotiated the price of the narcotics. It was also definitely established that at the approximate time of the discovery of the drugs Wright harbored resentment against the defendant.” (53 Ill. 2d 280, 284.)

Evident from the latter passage is the court’s concern that an innocent man had been convicted, thus casting doubt on its discussion of Strong.

The problem of interpreting Strong and Dollen has also caused the appellate court some difficulty, resulting in a split of authority on the question of whether a per se rule governs. (Compare People v. Cross (1978), 63 Ill. App. 3d 628, 632, People v. Haywood (1978), 63 Ill. App. 3d 352, 353, People v. Thomas (1978), 61 Ill. App. 3d 1112 (Rule 23 order), and People v. Spahr (1978), 56 Ill. App. 3d 434, 439, with People v. Arbogast (1976), 41 Ill. App. 3d 187, 190, People v. Hesler (1976), 39 Ill. App. 3d 843, 850, and People v. Hatch (1964), 49 Ill. App. 2d 177, 184.) This confusion has led us to consider the subject anew.

In our reconsideration of the subject and in light of the ever-growing drug problem, we are not so sure that the court should be so critical, as it was in Strong, of governmental action in infiltrating drug rings, and we do not believe that the courts should foreclose the possibility that a conviction of a predisposed individual could be sustained even though the government did furnish the controlled substance. The offense in question here is the unlawful delivery of a controlled substance and, although the government may have supplied the substance, the critical inquiry is whether the “criminal purpose” of selling these substances originated with the defendants (Ill. Rev. Stat. 1975, ch. 38, par. 7 — 12). By supplying an individual with controlled substances, the government is merely facilitating or providing the opportunity for the individual to make an unlawful delivery. This is not entrapment under our entrapment statute (Ill. Rev. Stat. 1975, ch. 38, par. 7 — 12). Any contrary statement in Strong, decided before enactment of the statute, should no longer be followed.

The entrapment statute, based in large part on the leading case of Sorrells v. United States (1932), 287 U.S. 435, 77 L. Ed. 413, 53 S. Ct. 210 (see Ill. Ann. Stat., ch. 38, par. 7 — 12, Committee Comments, at 439 (Smith-Hurd 1972)), provides:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1975, ch. 38, par. 7 — 12.)

It thus contemplates consideration of whether the idea for the crime originated with the defendant; predisposition as well as governmental involvement must therefore be considered. (See Hampton v. United States (1976), 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646; United States v. Russell (1973), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637; People v. Hatch (1964), 49 Ill. App. 2d 177, 183-85.) The language in Dollen, which interprets Strong as eliminating the need to consider predisposition, likewise should no longer be followed. Consideration of an individual’s predisposition is required, and, for that purpose, a complete review of the facts of Cross’ and Haywood’s cases is necessary. Because we believe that the State proved beyond a reasonable doubt that Cross and Haywood were predisposed to commit the offense of unlawful delivery of a controlled substance, we reverse the judgments of the appellate court in their cases.

On October 7, 1976, defendant Cross was alone in the East St. Louis home of Henry Pickett, a friend and government' informer. Cross testified that he had gone there with Pickett to help him with some work. Pickett and his wife had left temporarily, and Pickett had asked Cross to hold a plastic vial containing five capsules until he returned. Cross testified that he knew that the capsules contained heroin. He further testified that he had seen Pickett every day in the preceding year and had been in his home to perform home repair and decoration services.

While in Pickett’s home, Cross responded to the knock of a special agent of the Drug Enforcement Administration, Archie Luss, who was looking for Pickett to assist in finding an individual. According to Luss, Cross said that Pickett was not home and Cross asked if he could take care of any business for Luss. Luss testified that “business,” in his mind, meant a heroin sale. Luss also testified that he had not told Pickett that he was coming and that he did not know Cross and did not expect to meet him.

Luss returned to his car, where agent James McDowell was waiting, and the two then and there conceived of a plan whereby they would record the serial numbers of two of McDowell’s $10 bills and offer them to Cross in exchange for heroin. Luss and McDowell did not anticipate a sale and did not have official funds to use. Luss, in fact, testified that no sale would have occurred if they had not gone looking for Pickett and if they had not had some money of their own.

Luss returned to Pickett’s home and, according to Cross, said, “I want to cop two buttons.” Cross testified that he knew that “buttons” meant heroin. Cross then produced two pink capsules from a vial in his right pants leg, which he then exchanged for the $20. According to Cross’ testimony, $10 per capsule was charged because that was Pickett’s usual rate. Following the sale, the agents performed a field test on the pills and detected opium alkaloids.

After conducting the test, Luss again returned to ask Cross for five more buttons. Although Cross later testified that he would have sold five if he had had that many, he responded that he only had three. Upon handing them to Luss, he was arrested. Luss testified that, following the arrest, Cross said that he was selling buttons for Pickett.

The State did not call Pickett to rebut Cross’ claim that Pickett had given him the heroin, and, under Strong, this gives rise to an inference against the State (21 III. 2d 320, 325). Under the circumstances, however, little significance should attach to this fact because the sale here in question is not at all similar to the “set up” which was involved in Strong and which led the court to announce that an inference would arise against the State for its failure to call the informer. The evidence clearly indicated Cross’ predisposition to commit the offense, and the government’s involvement in the sale was prompted only by Cross’ offer to do business. The jury’s verdict and the circuit court’s judgment of conviction entered thereon are amply supported by the evidence.

Cross contends, however, that his conviction should nonetheless be reversed because the circuit court refused to instruct the jury on entrapment. The circuit court specifically held that defendant had not met the qualifications for the defense of entrapment, and it therefore refused the tendered instruction. We find no error in the ruling. The State’s evidence established beyond a reasonable doubt that Cross was predisposed to commit the offense and that the idea for the sale originated with him. People v. Cash (1963), 26 Ill. 2d 595, 597-98; People v. Guagliata (1936), 362 Ill. 427, 433.

The evidence against defendant Tom Haywood is, we believe, also sufficient to sustain the circuit court’s finding of guilt. Haywood was charged by indictment with the unlawful delivery of 50 grams of LSD on October 9, 1973, and the State’s evidence supported the allegation that the sale occurred on the date specified. On that day, according to the testimony of Illinois Bureau of Investigation (IBI) agent Lonnie Inlow, Haywood sold Inlow 1,000 tablets of LSD for $725. Inlow arranged the sale with the assistance of an informer, Don Zierenberg.

Defendant’s wife, Pamela, and a friend, Frank Herron, testified that Zierenberg supplied the LSD in question. Herron further testified that Zierenberg asked defendant to act as a source in making the sale. Mrs. Haywood testified, however, that the sale to which they were referring occurred in May of 1973, and Herron testified that it took place in the early summer of 1973.

In rebuttal for the State, agent Inlow testified that he made only one purchase from defendant prior to October 9, 1973, that being on March 15, 1973. This was corroborated by IBI expenditure records identified by IBI assistant administrator Russell Ford.

As to defendant’s claim that Zierenberg supplied the LSD, Inlow testified that he did not know if this was so, but he also testified that Zierenberg once had admitted selling drugs. Zierenberg was not called to testify.

Once the entrapment defense was raised, the State introduced evidence of defendant’s predisposition to commit the offense. Agent Inlow in particular spoke of defendant’s familiarity with drugs. He testified that, in the course of the March 15, 1973, sale, defendant indicated that the LSD was Berkeley (California) brown acid. At the October 9, 1973, sale, defendant is said to have represented that the LSD then sold was “as good in quality as good purple haze and it wasn’t cut with strychnine which makes it a lot better.” Inlow also testified that defendant expressed a desire to get good dope into the Belleville area and that defendant offered a price break for regular, large quantity sales. Defendant’s wife also testified that defendant used LSD and marijuana, although she also said that he had not been using these substances recently and did not sell them.

Notwithstanding discrepancies in the testimony of State and defense witnesses as to whether the sale occurred in May or October of 1973, defendant contends that the defense of entrapment was raised and that the State failed to prove beyond a reasonable doubt that entrapment did not exist. While we agree that the defense was raised, we do not agree that the State failed to meet its burden of proof. The circuit court, sitting without a jury, weighed the evidence and drew inferences therefrom; it considered the credibility of the witnesses and found against defendant. The circuit court’s judgment is well supported by the evidence, and we will not disturb that judgment since no reasonable doubt clearly manifests itself. People v. Fleming (1971), 50 Ill. 2d 141, 14:5-46; People v. Guido (1962), 25 Ill. 2d 204, 208.

Defendant Haywood, however, correctly argues that he is entitled to be resentenced. He points out, with support in the record, that the circuit court was under the misapprehension that it was prohibited from imposing a term of periodic imprisonment and that it felt compelled to impose a 4-year minimum sentence. The circuit court apparently acted in reliance on the 1975 version of the sentencing provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 5—3(d)(1), which had been recently amended to exclude periodic imprisonment as an available form of punishment for the offense committed by Haywood, a violation of section 401(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56V2, par. 1401(a)). The sentencing law in effect on the date on which Haywood committed the offense, October 9, 1973, did provide for the option of periodic imprisonment (Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 5—3(d)(1), (d)(2)), and Haywood is entitled to the application of that law (Ill. Rev. Stat. 1975, ch. 131, par. 4).

Although we have ruled that defendant Thomas has not preserved his entrapment argument for review, other issues concerning the validity of his guilty plea are raised in his appeal which do require consideration. The offense to which defendant Thomas pleaded guilty was the unlawful delivery of 40.1 grams of LSD on April 24, 1973, one of three charges for which he was indicted.

Following arraignment on October 13, 1974, the circuit court stayed proceedings pending a decision in People v. Mayberry (1976), 63 Ill. 2d 1, involving a challenge to the sentencing provisions applicable to defendant Thomas. The case eventually was set for trial on May 12, 1976, at 9 a.m. Defendant was late and at 10:30 the court again called the case with defendant then present.

At the outset of the proceedings, defendant said that he was not sure of the nature of the charges, but questioning by the court revealed that he was cognizant of the indictments and their contents. Defendant also stated that he did not consult his attorney in detail about the upcoming trial and that he had trouble understanding the attorney. He did later state, however, that he had met with the attorney on the previous day for an hour or an hour and a half, discussing the charges and possible pleas.

Defendant then indicated that he was ready for trial, but not that day. Defense counsel also expressed his readiness for trial, but expressed his belief that defendant was not. The court therefore granted defendant “a few days” to confer with counsel and to prepare for trial, but specified that trial would in no event be postponed more than five days. The court also ordered bond revoked pending trial, citing defendant’s failure to timely appear. The court then ordered a 15-minute recess, during which time defendant was to decide which day trial would commence.

At this point defendant asked the court if he could have time to obtain different representation. His attorney admitted that he was experiencing difficulty counseling defendant, but the court denied any further continuance for the purpose of substituting attorneys.

During the recess which followed, defendant decided to enter a guilty plea, and an agreement was negotiated whereby defendant would plead guilty to one of the three charges, and the State would dismiss remaining charges and recommend a four- to six-year term of imprisonment. When the case was again called, the court ordered bond reinstated, and it began questioning defendant about his decision to plead guilty.

The court first asked if defendant had discussed the case with his attorney, and he indicated that he had. The court then asked him if he wanted more time to consider his decision, and he indicated that he did not. When asked if he was satisified with his attorney, he responded affirmatively.

The court then questioned defendant about his awareness of the nature of the charges, potential sentences, and parole. The court also enumerated the rights waived by pleading guilty and asked, “[A] re you willing to give up each and every one of those rights to enter this plea?” After consulting with his attorney, defendant replied, “Yes.” The court finally assured itself that the plea was not the product of threats or promises, excepting those promises contained in the plea agreement.

The prosecutor then read a statement of the exact charges into the record for the purpose of supplying a factual basis for the plea:

“Your Honor, on April 23rd, 1973, Agent Inlow approached the mobile home of Mr. Thomas, entered the mobile home of Mr. Thomas, [and] at that time Agent Inlow inquired of Mr. Thomas if he had any LSD for sale. Mr. Thomas responded in the affirmative. Mr. Thomas walked into the kitchen area, reached into the top of a refrigerator, removed a quantity of light, yellow powder, indicated to the Agent that this was lemon [mese] for sale, received $70.00 and then delivered to Agent Inlow the powder. The Agent then took the powder, had it analyzed, and the analysis indicated that it was 40.1 grams of Lyseric Acid Diethylamide, commonly referred to as LSD.”

The judge asked defendant if he sold the LSD as alleged, and defendant answered “I did, and I was given it by the person who was there with [IBI agent] Inlow ***.” The court then accepted the plea.

Defendant’s first challenge to the validity of the plea is that a factual basis was lacking. (See 58 Ill. 2d R. 402(c).) He contends that the defense of entrapment was raised by telling the judge that someone with the undercover agent had supplied the LSD. As a consequence, he argues, a factual basis was lacking or, at least, the circuit court should have inquired further into the possibility that entrapment had occurred. We disagree on both points.

Our initial problem in accepting the position of defendant is that his statement at the plea proceedings was made in passing, added only after he admitted committing the offense as charged. Whether the circuit court recognized this statement as a claim of entrapment we do not know, and we could not find fault with the court if it did not.

Even assuming that the court was properly apprised of the possibility of entrapment, the record before the court clearly indicated that defendant was predisposed to commit the offense, therefore making any further inquiry into entrapment unnecessary. In addition to the statement of facts supplied by the prosecutor, the court also had before it the IBI reports pertaining to the offense, as well as the other two indictments for the unlawful delivery of 195.4 and 503.3 grams of LSD. The IBI reports were especially indicative of predisposition, showing defendant’s familiarity with drug terminology and paraphernalia and his expressed desire to do business in the future with IBI agent Inlow.

The circuit court’s duty was to assure itself that a factual basis for the plea existed, not whether defendant was proved guilty beyond a reasonable doubt, and we do not believe that the possibility of the defense of entrapment rendered the guilty plea defective. Defendant was represented by counsel, and the plea was fully explained. (See People v. Covington (1970), 45 Ill. 2d 105, 110; see also People v. Garrett (1977), 46 Ill. App. 3d 592, 594-97; People v. Terry (1975), 30 Ill. App. 3d 713, 714-16; People v. Williams (1975), 26 Ill. App. 3d 41, 43; People v. Arnold (1974), 18 Ill. App. 3d 95, 98.) We do not agree that the circuit court was required to do more.

Defendant Thomas’ final contention, which the appellate court found unnecessary to address, is that his plea was improperly induced by the circuit court’s decisions to revoke bond and to deny substitution of attorneys. Because we believe that the court’s rulings were within its discretion, we find no merit to defendant’s argument. As to the circuit court’s bond revocation order, defendant’s tardy appearance on May 12, 1976, justified the action. As to the court’s refusal to allow substitution of attorneys, the court reasonably could and, in fact, did find that defendant was engaging in dilatory tactics. Significant in this respect is the fact that defendant had ample time, more than three years, between the alleged sale and the date set for trial, May 12, 1976, in which to prepare. Also important is that defendant had met with counsel the previous day, and, when entering his plea, expressed satisfaction with the attorney. We find no ground for reversal in this argument. Cf. People v. Bratu (1970), 46 Ill. 2d 143, 146 (reversal not required despite the defendant’s claim that counsel coerced his guilty plea where evidence showed only that the attorney properly advised the defendant of the likelihood of conviction and the gravity of potential sentences); People v. Pratt (1970), 46 Ill. 2d 99, 103-04 (reversal not required despite the defendant’s claim of inadequate representation where a guilty plea represented an intelligent choice among alternatives and no prejudice was shown).

The appellate court’s judgments are reversed and the circuit court’s judgments are affirmed, except that the sentence of defendant Haywood is vacated and that cause is remanded to the circuit court for reconsideration of the sentence.

51201 — Appellate court reversed; circuit court affirmed.

51230 Appellate court reversed; circuit court affirmed in part and vacated in part; cause remanded.

51256 — Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51676.

      In re CUSTODY OF GREGORY GENE HARNE et al. (Gene M. Harne, Appellant, v. Nancy Harne Johnson et al., Appellees).

      Opinion filed September 19, 1979.
    Rehearing denied November 30, 1979.

      David L. Martenson of Martenson, Donohue & Alexander, P.C., of Rockford, for appellant.
    John G. Hooley, Public Defender, of Rockford, for appellee Nancy Harne Johnson.
    Richard J. Moriarty and Bernard H. Shapiro, of Prairie State Legal Services, Inc., of Rockford, for appellees Ray and Alpha McManus.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This case concerns the custody of two minor children, Gregory Gene Harne, age 11, and Carrie Lynn Harne, age 9. Their parents, Nancy Harne Johnson and Gene M. Harne, were divorced on June 27, 1972, and Mrs. Harne was awarded legal custody of the children. In the fall of 1975, however, Mrs. Harne’s parents took physical custody of the children when Mrs. Harne found herself unable to provide adequate care for them. On August 19, 1976, the father filed a petition for change of custody in the Winnebago County circuit court. The trial court granted the petition and modified the prior custody decree, by transferring legal custody of the children to the father, subject to reasonable visitation by the children’s mother and grandparents. On appeal, a divided Second District Appellate Court reversed and remanded (66 Ill. App. 3d 820) on the grounds that the trial court failed to comply with section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)). We allowed leave to appeal.

At the time of the trial court hearing, the two children, Gregory and Carrie, were living with the maternal grandparents, Mr. and Mrs. McManus, in a three-bedroom home in North Park. They are now approximately 70 and 68 years of age and are dependent upon social security and a monthly pension for support. The McManuses requested, and were granted, leave to intervene as defendants in this custody-modification proceeding.

The children’s mother, Nancy Harne Johnson, is approximately 31 years of age, is remarried, and has a 2-year-old daughter by her present husband. Mrs. Johnson has lived in a number of different locations since her divorce. At the time of the trial court hearing she was living in a one-bedroom apartment above a tavern and was working as part of a daytime cleanup crew at the Poison Apple Disco. She testified that she did not presently desire to have actual physical custody of the children, but instead preferred to have the children stay with her parents. She did state, however, that should anything happen to her parents, she would take physical custody of the children.

The children’s father is 32 years of age, remarried and has two children, aged 5 and 2, by his present wife. The family lives in a three-bedroom home in Loves Park. Apparently, all of the parties live within what might be described as the “Greater Rockford” area. At the time of the hearing, Harne had been employed as an assembly line worker at the Chrysler plant in Belvidere for 13 years. His wife testified that she supported her husband’s request for custody of his two children and that she would be home full time to care for them should custody be granted to him.

Following the trial court’s action of transferring custody to the father subject to reasonable visitation by the mother and grandparents of the children, the grandparents filed a motion to reconsider. The basis for their motion was that the trial court allegedly failed to make certain findings of fact as required by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act. The trial court denied the motion, a ruling which the appellate court held erroneous.

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act, which is patterned after section 409(b) of the Uniform Marriage and Divorce Act, provides as follows:

“(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with the consent of the custodian; or
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.” (Ill. Rev. Stat. 1977, ch. 40, par. 610(b).)

The issues before us are: (1) whether a trial court judge must make an explicit finding that one of the three factors listed in section 610(b) exists before a valid child-custody-modification order can be entered, and (2) if so, has the trial court judge in the present case satisfied that statutory requirement here.

There is considerable disagreement among the decided cases on the proper interpretation of the statutory language contained in section 610(b). As we interpret the opinion of the appellate court in this case, the majority concluded that in order to enter a valid child-custody-modification order, a trial judge must make a finding that the modification is supported by one of the three elements of section 610(b). This view is shared by the Montana Supreme Court, which recently interpreted a virtually identical Montana statutory provision. (Schiele v. Sager (1977), --- Mont. ---, 571 P.2d 1142; In re Custody of Dallenger (1977), 173 Mont. 530, 568 P.2d 169.) The interpretation of the Montana court is that subsections (1) through (3) of section 610(b) “are jurisdictional prerequisites to modification which were placed there to serve the basic policy behind the entire section, the policy of custodial continuity. To allow these crucial issues to be resolved merely be references to the best interests of the children would seriously weaken the statute.” In re Custody of Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 169, 172.

The members of our appellate court in the first and fourth districts, however, have taken a contrary approach (see e.g., De Franco v. De Franco (1978), 67 Ill. App. 3d 760; Drury v. Drury (1978), 65 Ill. App. 3d 290; Doyle v. Doyle (1978), 62 Ill. App. 3d 786), which is best summed up by the court in Doyle:

“We do not agree that a specific finding with respect to subsection (b)(1) to (3) is required. Subsection (b) expressly requires that a finding should be made that a change in circumstances of the child or custodian has occurred and that a modification is necessary for the child’s best interests. The express requirement for these findings indicates that no requirement was intended for more detailed findings on points (1), (2) or (3) although such findings would be of aid to a court of review.” 62 Ill. App. 3d 786, 791.

We believe that explicit findings by the trial court on points (1), (2) or (3) are not only “of aid to a court of review,” but are indispensable requirements of the statute. The commissioners’ note to section 409 of the Uniform Marriage and Divorce Act, which is the equivalent of our section 610, is enlightening on this point. It states in part:

“Most experts who have spoken to the problems of post-divorce adjustment of children believe that insuring the decree’s finality is more important than determining which parent should be the custodian. See Watson, The Children of Armageddon: Problems of Custody Following Divorce, 21 Syracuse L. Rev. 55 (1969). This section is designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child’s interest.
***
Subsection (b) in effect asserts a presumption that the present custodian is entitled to continue as the child’s custodian. It does authorize modifications which serve the child’s ‘best interest;’ but this standard is to be applied under the principle that modification should be made only in three situations: ***. The last phrase of subsection (b)(3) is especially important because it compels attention to the real issue in modification cases. Any change in the child’s environment may have an adverse effect, even if the noncustodial parent would better serve the child’s interest. Subsection (b)(3) focuses the issue clearly and demands the presentation of evidence relevant to the resolution of that issue.” '9A Uniform Laws Annotated sec. 409, Commissioners’ Note (1973).

We believe that section 610(b) of the Illinois Marriage and Dissolution of Marriage Act, like section 409(b) of the uniform act, reflects an underlying policy favoring the finality of child-custody judgments, and making their modification more difficult. The policy evident in the commissioners’ notes is also apparent in the provision of section 610(a) that “[n]o motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.” (Ill. Rev. Stat. 1977, ch. 40, par. 610(a).) The aversion to custody changes is further manifested by the requirement in section 610(b) that the custodian previously appointed shall be retained absent the conditions specified in sections 610(b)(1), (2) or (3). By creating a presumption in favor of the present custodian, the legislature has sought to promote a stability and continuity in the child’s custodial and environmental relationships which is not to be lightly overturned.

In view of these provisions, we do not believe that the legislature intended to allow modification of child-custody judgments without a finding by the trial court that one of the statutory prerequisites existed. Furthermore, absent such a judicial finding, a court of review would be unable to determine the basis for a modification order and would be left to speculate on the grounds relied upon by the trial judge. This does not appear to us to have been the intended result of section 610. Only if the trial court sets forth explicit findings that subsection (1), (2) or (3) applies, can the appellate courts intelligently review trial court judgments and the exercise of such trial court discretion as remains in this area.

Having determined that section 610(b) requires a trial judge to make explicit findings that either subsection (1), (2) or (3) is applicable prior to modifying a custody judgment, we consider whether this requirement was satisfied here. We believe that it was. Although the trial judge did not articulate the necessary finding at the conclusion of the hearing when he orally granted the petition for change of custody, he did make the necessary finding in his written order and also in response to the intervenors’ motion for reconsideration. In his written order, the trial judge found that “the Respondent does not have the stability or ability that is necessary to maintain and care for the children, that they have been living with their grandparents rather than the Respondent, and that under these circumstances, their present environment could seriously affect their physical, mental, moral or emotional health. Therefore, the Court finds that it is in the best interests of the minor children that the Petitioner have their care, custody and control.” Also, in response to the motion for reconsideration filed by the intervenors, the trial judge found that “it endangered their moral health and mental health since Grandma and Grandpa are too old to take care of them.” We think these findings were sufficient to satisfy the statutory requirements. Consequently, although we agree with the appellate court’s conclusion that specific findings on subsections (1), (2) or (3) are required, we disagree with its determination that the trial court findings in the present case were inadequate.

The mother and grandparents argue that there was not a sufficient showing of changed circumstances affecting the best interests of the children to justify a change in custody. On the contrary, we think that there was substantial evidence indicating that the long-range interests of the children would be served by a modification of the prior custody judgment. The children’s mother, the legal custodian, had given her parents actual physical custody of the children. The mother clearly was unable to assume responsibility for the care of her children, and her parents’ age made it quite unlikely that they could continue indefinitely to raise the children, despite their willingness to do so. On the other hand, the father of the children was remarried, steadily employed, and owned a three-bedroom house. His present wife wanted the children to live with them. Upon these facts, we do not think it can be said that the trial judge’s order was against the manifest weight of the evidence.

Finally, the respondent and intervenors argue that the trial court erred in refusing to allow them to introduce evidence of the father’s failure to make court-ordered child-support payments. Certainly such evidence would be relevant in a hearing on the father’s petition for custody of the children. Respondent’s sole attempt at introduction of evidence on this subject, however, was through cross-examination of the father. The trial court refused to permit questioning on this subject because it was beyond the scope of the direct examination and was not an issue raised by the pleadings. We do not regard that ruling as error in view of the fact that the question of child-support payments was clearly beyond the scope of the direct examination, and respondent’s counsel could have introduced testimony on the issue through direct examination of respondent.

Accordingly, we reverse the judgment of the appellate court and affirm the judgment of the circuit court of Winnebago County.

Appellate court reversed; circuit court affirmed.