author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 50992.
    GARY DEAN COONEY, Appellee, v. SOCIETY OF MT. CARMEL et al.—(Society of Mt. Carmel, Appellant.)

      Opinion filed April 3, 1979.

      Purcell & War drope Chartered, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    James J. Reidy, Ltd., of Chicago (Maureen J. McCann, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

The issue here is whether the notice requirement of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 8—102) is applicable to private schools.

In 1969 plaintiff, Gary Dean Cooney, was a 13-year-old student at Mt. Carmel High School in Chicago, a private, Roman Catholic school owned and operated by defendant Society of Mt. Carmel (Society). On November 28, 1975, after plaintiff had reached his majority, he filed a two-count complaint in the circuit court of Cook County against the Society and two physical education instructors employed by it. Count I alleged that in February 1969 the two instructors were negligent in refusing to excuse plaintiff from certain physical education classes. Count II charged that the instructors exhibited wilful and wanton misconduct that proximately caused injury to plaintiff.

The Society moved to dismiss count I on the ground that the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 24—24) barred negligence actions against private schools. The trial court granted the motion, and no appeal was taken from that order. The Society also moved to dismiss count II on the ground that the Local Governmental and Governmental Employees Tort Immunity Act applies to private schools and that plaintiff had failed to serve the school with a presuit notice of injury as required by that act (Ill. Rev. Stat. 1975, ch. 85, par. 8—102). The trial court granted the motion to dismiss count II. The appellate court reversed, holding that the General Assembly did not intend that the Local Governmental and Governmental Employees Tort Immunity Act should apply to private schools. (61 Ill. App. 3d 108.) We granted the Society’s petition for leave to appeal (65 Ill. 2d R. 315).

We agree with the appellate court. Plaintiff’s failure to comply with the presuit notice provisions of the Act therefore does not bar his action against a private, parochial school.

The Local Governmental and Governmental Employees Tort Immunity Act applies to any “local public entity” as that phrase is used in the statute:

“ ‘Local public entity’ includes' a county, township, municipality, municipal corporation, school district, school board, forest preserve district, park district, fire protection district, sanitary district, and all other local governmental bodies.” (Ill. Rev. Stat. 1975, ch. 85, par. 1-206.)

Absent is any express inclusion of private schools. The full title of the Act, the Local Governmental and Governmental Employees Tort Immunity Act, gives no indication that the liability of private schools is included in the subject matter of the Act or connected with it. (See People ex rel. Ogilvie v. Lewis (1971), 49 Ill. 2d 476, 487.) To the contrary, the use of the word “Governmental” suggests that private entities are not within the Act’s provisions.

Consideration of the Act’s objectives also convinces us that it was not the legislature’s intent that the Act should apply to private schools. It was enacted to restore, in a constitutionally permissible manner and to the specified degree, the principle of local governmental immunity rejected by this court in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11. (See Cleary v. Catholic Diocese (1974), 57 Ill. 2d 384, 386-87; Note, Illinois School Tort Immunity: 1959 to the Present, 2 Loy. Chi. L.J. 131, 142-43 (1971).) That is a purpose to which the liability of private schools bears no relation.

We reject the Society’s contention that the presence of both the term “school board” and the term “school-district” indicates that the Act draws a distinction between private and public schools, respectively, and is therefore applicable to both. The terms are contained in a list which concludes with the phrase “all other local governmental bodies” (emphasis added) (Ill. Rev. Stat. 1975, ch. 85, par. 1—206), an indication that both terms refer to public schools. Nor is the inclusion of both terms superfluous (see People ex rel. Barrett v. Barrett (1964), 31 Ill. 2d 360, 364-65), since the term “school district” refers to a geographical area and the term “school board” refers to a group of persons (Black’s Law Dictionary 1512 (4th ed. 1968).

In sum, a review of the statutory language and purpose of the Local Governmental and Governmental Employees Tort Immunity Act clearly indicates that it does not apply to private, parochial schools. While private schools serve the public good by educating children, the performance of that beneficial function does not transform such schools from private into public entities.

In support of its argument that private schools are entitled to the same presuit notice as are public schools, the Society cites Harvey v. Clyde Park District (1964), 32 Ill. 2d 60. That case is inapplicable since it was concerned with disparities in the statutory treatment of public entities performing the same function. It did not focus on variations in the statutory treatment of public and private entities. Lorton v. Brown County Community Unit School District No. 1 (1966), 35 Ill. 2d 362, and Treece v. Shawnee Community Unit School District No. 84 (1968), 39 Ill. 2d 136, which relied on the rationale in Harvey, are similarly inapplicable. They struck down limitations on the tort liability of public schools which were not made applicable to other public entities.

The Society has also placed extensive reliance on cases which have held that the tort liability provisions of the School Code (Ill. Rev. Stat. 1975, ch. 122, pars. 821 through 831) must be applied equally to public and private schools under the terms of that statute (Haymes v. Catholic Bishop (1968), 41 Ill. 2d 336, 344; Cleary v. Catholic Diocese (1974), 57 Ill. 2d 384, 388). The Local Governmental and Governmental Employees Tort Immunity Act and the tort liability provisions of the School Code, however, are two independent enactments. It does not foUow that public and private schools must be treated identically under all statutes merely because the tort liability provisions of the School Code cover both public and private schools and because this court has held that the School Code requires equal treatment of public and private schools under the terms of that statute. While recognizing that public and private schools may sometimes be classified together in light of the similarity of their functions and activities, this court has also noted that it does not follow that the legislature is required to adopt that classification in the Local Governmental and Governmental Employees Tort Immunity Act (Cleary v. Catholic Diocese (1974), 57 Ill. 2d 384, 387). We have already determined that the General Assembly did not include private schools within the provisions of the Act.

The conclusion that private schools are not covered by the Local Governmental and Governmental Employees Tort Immunity Act and therefore are not entitled to the same presuit notice as are public schools does not contravene the equal protection clauses of either the Illinois or the United States constitutions, since there is a reasonable basis for the difference in treatment which bears a rational relationship to a legitimate State purpose (Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 512; Pozner v. Mauck (1978), 73 Ill. 2d 250, 255). This court has on several occasions sustained the presuit notice provision contained in the Local Governmental and Governmental Employees Tort Immunity Act against attack on the ground that it creates an unconstitutional classification (Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 293; Fanio v. John W. Breslin Co. (1972), 51 Ill. 2d 366, 368; Housewright v. City of LaHarpe (1972), 51 Ill. 2d 357, 361). As this court said in King v. Johnson (1970), 47 Ill. 2d 247, 250-51: “The purpose of this statute is to furnish timely notice of injury so that there can be an investigation and a prompt settlement of meritorious claims. *** Notice of possible tort claims [within the statutorily prescribed period] is reasonably related to the legislative purpose of imposing tort liability on all local governmental entities on a fair and orderly basis.”

In sum, the Local Governmental and Governmental Employees Tort Immunity Act is inapplicable to private schools, and our cases do not require equal treatment of public and private schools beyond the application of the tort liability provisions* of the School Code. The General Assembly is free to treat public schools differently from private schools by including only public schools in the provisions of the Local Governmental and Governmental Employees Tort Immunity Act.

For the reasons stated, plaintiff’s action against the Society was not barred by his failure to provide the presuit notice of injury that the Local Governmental and Governmental Employees Tort Immunity Act makes applicable to public schools. The judgment of the appellate court is accordingly affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 50929.
    THE DEPARTMENT OF TRANSPORTATION, Appellee, v. TOLEDO, PEORIA & WESTERN RAILROAD COMPANY, Appellant.

      Opinion filed April 3, 1979.

      Rehearing denied May 30, 1979.

      John E. Cassidy, Jr., of Cassidy, Cassidy, Mueller & Price, of Peoria, for appellant.
    William J. Scott, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Tim Swain, Special Assistant Attorney General, of Peoria, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, the Illinois Department of Transportation, formerly the Department of Public Works and Buildings, filed an action in the circuit court of Peoria County to condemn 42.6 acres of land owned by respondent, Toledo, Peoria & Western Railroad Company. Petitioner moved that it be immediately vested with fee simple title (Ill. Rev. Stat. 1971, ch. 47, par. 2.1 et seq.), the court made a preliminary finding of just compensation, and funds in the required amount were deposited by petitioner and withdrawn by respondent. Subsequently, petitioner filed a motion in limine to exclude certain evidence at the trial to determine just compensation. The circuit court denied the motion and included in its order the findings requisite to an application for leave to appeal. (Supreme Court Rule 308 (58 Ill. 2d R. 308).) The appellate court allowed petitioner’s application for leave to appeal and reversed the order of the circuit court (59 Ill. App. 3d 886). We allowed respondent’s petition for leave to appeal.

In stating the issues presented, and announcing its rulings, the circuit court said:

“It is apparent from the pleadings and the evidence taken at the ‘quick take’ hearing that the plans for Interstate By-Pass 474 called for a bridge across the Illinois River and across some lowlands near the property subject to this Petition for Condemnation. After the bridge was partially constructed, contracts were let to obtain fill material for a dike road inasmuch as a portion of the land is subject to flooding. In connection with these contracts, a subcontractor did purchase from the defendant, Toledo, Peoria & Western Railroad, certain quantities of fill material from the area presently subject to this condemnation suit at an arm’s length contract on the open market for 12 cents per cubic yard. Thereafter the state sought to condemn the subject property and filed this Petition, the only use to be made of the property being the extraction of fill material for the nearby right-of-way roadbed.
It is the ruling of this Court that the proper measure of damages to be submitted to the jury is the value of the land including the mineral content thereof; that the jury is entitled to know that the sole purpose of acquiring the land was to obtain minerals; that there had previously been a contract arrived at at arm’s length by subcontractor for these minerals for this purpose a short period prior to the filing of this Petition, because each of these facts would have been considered by a willing buyer and a willing seller in determining what market price might be established for this property at the time of the filing of the Petition for Condemnation.”

The circuit court certified the following questions for interlocutory appeal:

“In determining the amount of damages for land taken, where the purpose of the taking is not for right of way but solely to acquire fill from nearby land:
(a) Is the proper measure of damages the value of the land, considering but not limited to the value of the fill material to be extracted?
(b) May evidence be introduced that the improvement is creating a ‘one time’ market for the fill material which a willing buyer and seller would consider in arriving at a fair cash market value at the time of the filing of the petition?
(c) May the fact be shown that in the earlier stages of the improvement a contractor in an arm’s length purchase paid to owner $.12 per cubic yard for fill material for the improvement?
(d) May the actual amount of fill material taken after a ‘quick take’ and before trial be admitted into evidence?”

The appellate court held that the land taken was to be valued at its fair cash market value, as a whole, for its highest and best use; that the land included all the minerals, improvements and appurtenances connected therewith, all of which may be considered as factors in the determination of the fair cash market value “but under no circumstances is the fair cash market value to be the sum of such factors.” (59 Ill. App. 3d 886, 890.) It held the evidence to which questions (b), (c) and (d) refer to be inadmissible.

Respondent contends that to be justly compensated for the taking it must be paid a sum computed by multiplying the number of cubic yards of fill material removed by 12 cents per yard, and that anything less would violate the provisions of the fifth amendment to the Constitution of the United States. The People contend that just compensation for the taking must be determined on the basis of the land as land, and not on the basis of determining the cubic yards of fill material removed.

In Department of Public Works & Buildings v. Oberlaender (1969), 42 Ill. 2d 410, petitioner sought to condemn approximately 44 acres of a tract of land which for many years had been used as a sand quarry. Witnesses for the landowner had considered the worth of the sand deposits separately ifi determining their opinions as to the value of the land.

The court said:

“It is not questioned here that the measure of compensation for land taken in a condemnation proceeding is the fair cash market value of the property for its highest and best use. Fair market value can be defined as the price for which the property would sell under ordinary circumstances surrounding the sales of property, assuming both an owner willing to sell and a purchaser willing, but under no compulsion, to buy. (Forest Preserve Dist. v. Hahn, 341 Ill. 599, 602; see, Department of Public Works and Buildings v. Filkins, 411 Ill. 304, 307.) Concerning the fair market value of land containing mineral deposits this court has stated that: ‘The rule is that compensation must be estimated for the land as land, with all its capabilities, and if there is timber on it, or coal, oil or other minerals under the surface, they are to be considered so far as they affect the value of the land but they cannot be valued separately.’ (Forest Preserve Dist. v. Caraher, 299 Ill. 11, 17; accord, Department of Public Works and Buildings v. Hubbard, 363 Ill. 99, 102; see also City of Chicago v. Central National Bank, 5 Ill. 2d 164, 175; Chicago Land Clearance Com. v. Darrow, 12 Ill. 2d 365, 372.) Putting it somewhat differently, where, as here, the property is not taken for the purpose of obtaining the minerals or a going business (see City of Chicago v. Farwell, 286 Ill. 415, 423; 29A C.J.S. Eminent Domain, sec. 174, p. 737, note 87), it is improper to appraise separately the mineral deposit and add its value to the value of the land without the deposits (4 Nichols on Eminent Domain 13.22; 1 Orgel, Valuation under the Law of Eminent Domain, 2d ed. sec. 165, p. 672; Jahr, Law of Eminent Domain—Valuation and Procedure, sec. 151; see Department of Public Works and Buildings v. Lotta, 27 Ill. 2d 455, 456.) It is proper, however, for the owner to establish the existence of valuable mineral deposits on the real estate being valued and in doing this to show the character of the deposit(s) and to what extent it enhances the land’s market value. Forest Preserve Dist. v. Caraher, 299 Ill. 11, 17-18; Forest Preserve Dist. v. Kercher, 394 Ill. 11, 23.” (42 Ill. 2d 410, 415-16.)

Citing Oberlaender, respondent argues “that where, as in this case, the property is taken solely for the purpose of obtaining the minerals, it is not only proper, but constitutionally required, that the mineral deposit be valued separately at its per unit market value and the trial court has twice found that the fill material ‘has a known market value of recent origin and date which was formed between parties dealing at arm’s length’ at 12 cents a cubic yard.” It argues too that the value of the property taken was 12 cents per cubic yard even though it was the proximity of the original public improvement which created the market and the enhanced value. In support of this position it contends that the original petition sought to condemn only the fill material and the taking of the 42.6-acre tract was not within the scope of the original project, and that when the petitioner decided to take the land the per cubic yard market value had already been established. It argues that it follows from this that the value can be determined by multiplying the number of cubic yards taken by the unit price of 12 cents per cubic yard.

We agree with the circuit and appellate courts that the proper measure of damages is the value of the land taken, considering all the factors enumated in Oberlaender. To permit proof of the market for the fill material created by petitioner’s construction project would result in the land being valued not as land, but as a source of fill material. This is contrary to the rule enunciated in Department of Public Works & Buildings v. Oberlaender.

The same objection would arise to proof of a prior agreement to purchase the fill material at a price of 12 cents per cubic yard. That transaction resulted not from the value of the land as land, but from the fortuitous circumstance that, by reason of its proximity to the bridge project, fill material had that value at that particular time and place. Such proof would clearly be violative of the long-established requirement that in fixing the value of land all the factors be considered, and that it not result from a totaling of the various factors.

The evidence concerning the amount of fill material actually taken from the land would be inadmissible. It is well estabhshed that the valuation must be fixed as of the date of the taking, and as of the date of taking there was no way to determine the amount of fill material which would be excavated from the land condemned. Evidence of what occurred subsequent to the valuation date may not be considered.

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

Judgm en t affirm ed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51066.
    ILLINOIS GAMEFOWL BREEDERS ASSOCIATION, Appellee, v. JOHN BLOCK, Director of Agriculture, Appellant.

      Opinion filed March 14, 1979.

      Rehearing denied May 30, 1979.

      William J. Scott, Attorney General, of Springfield (Paul J. Bargiel and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Roger V. Pierson and Matthew A. Maloney, of Princeton, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:'

Plaintiff, Illinois Gamefowl Breeders Association, a not-for-profit Illinois corporation, filed an action for declaratory judgment pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57.1) seeking a declaration that certain provisions of the Humane Care for Animals Act (Ill. Rev. Stat. 1975, ch. 8, par. 701 et seq.) were unconstitutional. Following the submission of cross-motions for summary judgment, the Bureau County circuit court declared the challenged provisions unconstitutional. Defendant appealed directly to this court pursuant to our Rule 302(a). 58 Ill. 2d R. 302(a).

The Association exists for the purpose of uniting breeders and fanciers of gamefowl into a common organization, thereby benefiting its members by exchanging and distributing information and ideas concerning the perpetuation and improvement of the various breeds of gamefowl. Additionally, plaintiff alleges that it has a proprietary interest in the breeding, raising and selling of gamefowl and owns gamefowl. Finally, although the parties stipulated that the term “gamefowl” refers to chickens, plaintiff did allege in its complaint that “gamefowl are animals within the scope, meaning, intent and appHcation” of the Act.

Section 4.01 of the Act provides in part:

“Sec. 4.01. (a) No person may own, capture, breed, train, or lease any animal which he or she knows or should know is intended for use in any show, exhibition, program, or other activity featuring or otherwise involving a fight between such animal and any other animal or the intentional killing of any animal for the purpose of sport, wagering, or entertainment.
(b) No person shall promote, conduct, carry on, advertise, collect money for or in any other manner assist or aid in the presentation for purposes of sport, wagering, or entertainment, any show, exhibition, program, or other activity involving a fight between two or more animals or the intentional killing of any animal.
(c) No person shall sell or offer for sale, ship, transport, or otherwise move, or deliver or receive any animal which he or she knows or should know has been captured, bred, or trained, or will be used, to fight another animal or be intentionally killed, for the purpose of sport, wagering, or entertainment.” (Ill. Rev. Stat. 1975, ch. 8, pars. 704.01(a), (b), (c).)

Plaintiff challenged subsections (a) and (c) of section 4.01 and the corresponding penalty provisions in section 16 of the Act (Ill. Rev. Stat. 1975, ch. 8, par. 716). These sections essentially prohibit owning, breeding, training, selling, shipping or receiving animals which one knows or should know are intended to be used for fighting purposes. Plaintiff does not challenge the validity of subsection (b) of section 4.01, which actually prohibits animal fighting for sport, wagering or entertainment.

A preliminary question which must be addressed is whether plaintiff has standing to maintain an action for declaratory relief. This court discussed the two requirements for standing to bring a declaratory judgment action in Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371:

“First, there must be an ‘actual controversy.’ (Ill. Rev. Stat. 1973, ch. 110, par. 57.1(1).) ‘Actual’ in this context does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. [Citations.] The case must, therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. [Citations.]
The second, and somewhat related requirement, is that the party seeking the declaration must be ‘interested in the controversy.’ (Ill. Rev. Stat. 1973, ch. 110, par. 57.1(1).) The word, ‘interested’ does not mean merely having a curiosity about or a concern for the outcome of the controversy. Rather, the party seeking relief must possess a personal claim, status, or right which is capable of being affected. [Citations.] The dispute must, therefore, touch the legal relations of parties who stand in a position adverse to one another.” (66 Ill. 2d 371, 375-76.)

In order to preclude those persons having no interest in a controversy from bringing suit, it is necessary that one who challenges the constitutionality of a statute bring himself within the class as to whom the law is allegedly unconstitutional. (Schiller Park Colonial Inn, Inc. v. Berz (1976) , 63 Ill. 2d 499, 510-11; People v. Bombacino (1972), 51 Ill. 2d 17, 20; Jaffe v. Cruttenden (1952), 412 Ill. 606, 613.) To have standing, therefore, one must have sustained, or be in immediate danger of sustaining, a direct injury as a result of enforcement of the challenged statute. Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 550; People v. Mayberry (1976), 63 Ill. 2d 1, 6.

Despite a lack of clarity and directness in plaintiff’s complaint and the use of conclusional allegations, we believe that plaintiff has demonstrated a sufficient interest to maintain this declaratory judgment action. Plaintiff has alleged that it owns gamefowl which are, admittedly, “animals” within the meaning of this Act. Since the Act only applies to animals which one knows or should know are intended to be used for animal fighting, plaintiff has, albeit indirectly, brought itself within the class allegedly aggrieved by the statute and is, therefore, “interested in the controversy” within the meaning of the declaratory judgment statute (Ill. Rev. Stat. 1975, ch. 110, par. 57.1(1)).

We also believe an “actual controversy” is present. (Ill. Rev. Stat. 1975, ch. 110, par. 57.1(1).) This requirement is intended to prevent the courts from granting declarations of rights involving only abstract propositions of law. (Underground Contractors Association v. City of Chicago (1977) , 66 Ill. 2d 371, 375; Beck v. Binks (1960), 19 Ill. 2d 72, 74; Exchange National Bank of Chicago v. County of Cook (1955), 6 Ill. 2d 419, 421.) It is necessary, however, to keep in mind the legislative purpose, which is to make possible a binding declaration of rights without requiring the parties to make an irrevocable change of position which might jeopardize those rights. Richards v. Liquid Controls Corp. (1975), 26 Ill. App. 3d 111, 130; Charleston National Bank v. Muller (1974), 16 Ill. App. 3d 380, 382.

The “actual controversy” requirement is meant merely to distinguish justiciable issues from abstract or hypothetical disputes and is not intended to prevent resolution of concrete disputes admitting of a definitive and immediate determination of the rights of the parties. (A. S. & W. Club of Waukegan v. Drobnick (1962), 26 Ill. 2d 521, 524.) The declaratory judgment remedy should be liberally applied and not restricted by unduly technical interpretations. (Saline Branch Drainage District v. Urbana-Champaign Sanitary District (1948), 399 Ill. 189, 192; Department of Illinois Disabled American Veterans v. Bialczak (1976), 38 Ill. App. 3d 848, 853.) Plaintiff has alleged that it owns “animals within the scope, meaning, intent and application” of the challenged statute. Such ownership raises the threat of potential criminal prosecution, and, in our judgment, is sufficient to entitle plaintiff to bring a declaratory judgment action chaUenging the constitutionality of the statute.

We turn, then, to the constitutional issues. The trial court held subsections (a) and (c) of section 4.01 and the companion penalty provisions in section 16 of the Humane Care for Animals Act unconstitutional as violative of the due process clauses of both the Federal and State constitutions. Both the trial court in its order and the plaintiff in its brief cited only one case in support of their position that these provisions are invalid. That case is the appellate court opinion in Finish Line Express, Inc. v. City of Chicago (1978), 59 Ill. App. 3d 419, a decision which we reversed. (Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 138.) Plainly, these provisions were enacted by the legislature pursuant to its police power in an effort to prevent the cruelty and gambling associated with animal fighting engaged in for “sport, wagering or entertainment. ” To constitute a legitimate exercise of the police power, this legislative enactment must bear a reasonable relationship to the public interest intended to be protected, and the means adopted must be a reasonable method of accomplishing the desired objective. (Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 138; Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 327.) Once the legislature determines that a problem exists and acts to protect and promote the general welfare of its citizens, the legislation is presumed to be a valid exercise of the State’s police power. (Union Cemetery Association v. Cooper (1953), 414 Ill. 23, 32.) Furthermore, the due process clauses of the State and Federal constitutions, insofar as they operate to limit the exercise of the State’s police power, prohibit only its arbitrary or unreasonable use. City of Decatur v. Chasteen (1960), 19 Ill. 2d 204,210.

Plaintiff has challenged only subsections (a) and (c) of section 4.01, and has in effect conceded the validity of subsection (b), which prohibits animal fighting for purposes of sport, wagering or entertainment. Certainly subsection (b)’s prohibition of animal fighting is a valid exercise of the State’s police power. Likewise, we believe the prohibitions contained in subsections (a) and (c) (e.g., owning, breeding, training, selling or transporting) are reasonably related to the proper governmental purpose of eliminating the evils associated with animal fighting. Clearly, the legislature intended to strengthen the ban on animal fighting by making it illegal to knowingly engage in the supporting activities which make animal fighting possible, and the prohibitions contained in subsections (a) and (c) were intended to insure that those who wish to stage such exhibitions will not be able to procure the needed animals from local breeders.

As this court stated in S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70:

“[I] f a law bears a reasonable relationship to a proper legislative purpose and is neither arbitrary nor discriminatory, the requirements of due process are met and the courts will not substitute their judgment for that of the legislature.” 61 Ill. 2d 70, 77.

Plaintiff seems to believe that absolute criminal liability is imposed by the challenged subsections for the acts of a future owner, a belief in which plaintiff is clearly mistaken. The unambiguous language of the statute provides for criminal liability only where one engages in the prohibited conduct with knowledge, actual or imputed, that the animals had been, or are intended to be, used for fighting purposes. For example, mere custody of an animal which may have been trained or bred by another for fighting purposes is insufficient, standing alone, to constitute a violation of the Act. It must be established that the offender knew or should have known that the animal had once been intended or will be used for fighting purposes. Contrary to plaintiff’s argument and the conclusion of the trial court, one who neither knows nor has reason to know that the animal with which he is concerned has been owned, captured, bred, trained or leased for fighting purposes or will be used for such purposes is not subject to prosecution under the challenged provisions.

Although the point was not raised by the parties, we feel it is important to emphasize the fact that our action in upholding the constitutionality of this act should pose no threat to the legitimate activities of hunters, fishermen and other sportsmen. In fact, section 13 of the Act provides explicitly that in case of conflict between this act and the Game Code of Illinois (Ill. Rev. Stat. 1975, ch. 61, par. 1.1 et seq.), the provisions of the latter shall prevail. Ill. Rev. Stat. 1975, ch. 8, par. 713.

The judgment of the circuit court of Bureau County is accordingly reversed.

Judgment reversed.


author: MR. JUSTICE CLARK

text:
    (No. 50442.
    RALPH LUNT, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Standard Brands, Inc., et al., Appellees.)

      Opinion filed March 20, 1979.

      Rehearing denied May 30, 1979.

      Scheele, Murphy & Serkland, Ltd., of La Grange (James C. Serkland, of counsel), for appellant.
    Kane, Doy & Harrington, of Chicago (Arthur O. Kane and Gregory E. Ahern, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The petitioner, Ralph Lunt, brought this action pursuant to paragraph (h) of section 19 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(h)) to increase his prior award of compensation on the ground that his disability subsequently had increased. The Industrial Commission refused to increase petitioner’s compensation, the circuit court confirmed the Industrial Commission, and petitioner now appeals here claiming that the terse language of the Industrial Commission’s decision does not “allow for an adequate judicial review.” We now affirm the judgment of the circuit court because we find that any such deficiency in this case is due to the petitioner’s failure to request more specific findings pursuant to paragraph (e) of section 19 (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(e)).

The third subparagraph of section 19(e) provides in relevant part as' foHows:

“In any case the Commission in its decision may in its discretion find specially upon any question or questions of law or fact which shall be submitted in writing by either party whether ultimate or otherwise; provided that on issues other than nature and extent of the disability, if any, the Commission in its decision shall find specially upon any question or questions of law or fact, whether ultimate or otherwise, which are submitted in writing by either party: provided further that not more than 5 such questions may be submitted by either party.”

Petitioner nonetheless claims that paragraph (e) applies only to proceedings for review of an arbitrator’s decision, and not to proceedings under paragraph (h) for review of a prior award. We disagree. Although the first two subparagraphs of paragraph (e) refer to review of decisions of the arbitrator, there is nothing in the language of the third subparagraph of paragraph (e) which indicates that its applicability is so limited. Rather, findings may be requested “in any case.”

Since petitioner did not submit any questions of law or fact he is not entitled to more specific findings. We need not determine here whether, if he had so requested, he would be entitled to more specific findings.

The judgment of the circuit court is affirmed'.

Judgment affirmed.


author: MR. JUSTICE RYAN MR. JUSTICE MORAN,

text:
    (No. 50676.
    JAMES McCABE, Appellee, v. JAMES BURGESS, State’s Attorney, et al., Appellants.

      Opinion filed April 18, 1979.

    Rehearing denied May 30, 1979.

      MORAN and CLARK, JJ., dissenting.
    Thomas J. Difanis, State’s Attorney, of Urbana (James E. Souk, Assistant State’s Attorney, and Mark Weber, law student, of counsel), for appellant.
    Robert I. Auler, of Urbana (Mark DeBofsky, law student, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

James McCabe brought this suit to enforce the holdings of our prior decisions of People v. McCabe (1971), 49 Ill. 2d 338, and People v. Meyerowitz (1975), 61 Ill. 2d 200, through a class action. (James McCabe is not the same person as the defendant in People v. McCabe.) The Champaign County circuit court dismissed the class action. The appellate court reversed. (57 Ill. App. 3d 450.) We granted leave to appeal. The primary issue presented for review is the validity of the trial court’s refusal to certify a class action.

James McCabe has alleged that he was convicted and paid a fine under the Illinois Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, pars. 22—1 through 22—49.1). That law, as it related to marijuana, was declared unconstitutional in People v. McCabe (1971), 49 Ill. 2d 338. Subsequently, this court ruled that all those convicted under the Act had a right to the expungement of their conviction and the return of any fine money and court costs attributable to those convictions. (People v. Meyerowitz (1975), 61 Ill. 2d 200.) McCabe now seeks to bring this action on his own behalf and as a representative “of a class of persons, consisting of persons convicted for violations of the 1969 Illinois Uniform Narcotic Drug Act involving sale, possession or control of marijuana.” Though not shown on the face of the pleadings, the briefs, the trial court, and the appellate court considered the class that McCabe purports to represent as being only those persons convicted in Champaign County.

On the defendant’s motion, the trial court dismissed McCabe’s amended complaint. In a written memorandum the trial court specifically found that the question of law common to the members of the purported class had been decided in People v. McCabe and People v. Meyerowitz. The court also found that a class action would not in any way relieve the court or the litigants of any burden or time expended in resolving the factual questions material to the claimants’ right to recover and that the factual questions that would be involved would require the examination of each individual case. Thus the court found that there were no unresolved questions of law or fact common to the members of the class and that maintaining the class action would not result in an increased efficiency in the adjudication of the claims. The court also rejected McCabe’s claim that the right to notify each member of the class of his right of expungement and reimbursement was a common question of law or fact which would support a class action. The court noted that McCabe’s right, and the right of the other members of the class, was to have the convictions expunged and to recover the fines and costs that had been collected. McCabe and the other members of the purported class would not have a right to have the others who had been convicted under the same statute notified of their right of expungement and recovery.

This action began prior to enactment of the Illinois class action statute (Ill. Rev. Stat. 1977, ch. 110, pars. 57.2 through 57.7). This court has held that since the statute is procedural in nature, it is applicable to pending cases. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 337.) The class action statute sets out very clearly the requirements for maintenance of a class action.

“Prerequisites for the maintenance of a class action. (a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” (Ill. Rev. Stat. 1977, ch. 110, par. 57.2.)

This section of the statute, in essence, codifies the previous holdings of this court as to the prerequisites to the maintenance of a class action. Although the trial court in this case rendered judgment prior to the effective date of the statute, it, nonetheless, bottomed its decision on the absence of certain prerequisites which had been considered essential under the case law of this State, and which have been incorporated in the statute as prerequisites. Under the statute, the proponent of the class action has the burden of establishing these prerequisites and the court must find them present before it can sanction the maintenance of the action as a class action. (Ill. Ann. Stat., ch. 110, par. 57.2, Supplement to Historical and Practice Notes (Smith-Hurd Supp. 1978).) Here the trial court specifically found the absence of certain of these prerequisites, notably: (1) Questions of law or fact common to the class which predominate over any questions affecting only individual members, and (2) The class action would be an aid in efficient adjudication of the controversy.

Class certification under Federal Rule 23 of the Federal Rules of Civil Procedure is a matter within the discretion of the trial court. (Montgomery v. Rumsfeld (9th Cir. 1978), 572 F.2d 250, 255; City of New York v. International Pipe & Ceramics Corp. (2d Cir. 1969), 410 F.2d 295, 298.) When the trial court applies the criteria of Rule 23 to the facts of the case, it “has abroad discretion in determining whether the action may be maintained as a class action and its determination should be given great respect by a reviewing court.” (3B J. Moore, Federal Practice sec. 23—437 (2d ed. 1978).) Only a clear abuse of discretion or an application of impermissible legal criteria as shown justifies a reversal of the trial court. (Yamamoto v. Omiya (9th Cir. 1977), 564 F.2d 1319, 1325; Carey v. Greyhound Bus Co. (5th Cir. 1974), 500 F.2d 1372, 1380.) This has been the standard of review which this court has applied in cases where discretion has been vested in the trial court. In Whitney v. Madden (1948), 400 Ill. 185, 190, this court stated: “[Wjhere the trial court has the power of judicial discretion and exercises it without abuse, and within the scope of the law, such action will not be disturbed by the reviewing courts.” In Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 4, this court also stated: “In this case the appellate court reversed the trial court, apparently not because that court had abused its discretion, but because the appellate court felt that the trial court’s discretion had not been ‘wisely exercised.’ In our opinion the appellate court misapprehended its role and misapplied the governing principles.”

In our opinion, the appellate court in this case likewise misapprehended its role and misapplied the governing principles with regard to the holding of the trial court that the two prerequisites to a class action set out above were not present in the case. The appellate court, in reviewing this determination of the trial court, did not assess the discretion exercised by the trial court and did not find that it had abused the discretion vested in it. Instead, the appellate court itself assessed the facts of the case and concluded: “This is the kind of case that is well suited for a class action.” The court then reversed the circuit court and remanded the cause for further proceedings. 57 Ill. App. 3d 450,455.

Although the trial court considered the size of the class and the fairness of a class action to the members of the class, we view as controlling its determination that there were no questions of law or fact common to the members of the class to be litigated in a class action and that the class action would not result in any increased efficiency to the court or to the litigants in the adjudication of the claims. Under section 57.2 of the Civil Practice Act these prerequisites must be established by the proponents of the class action. We find that the determination of the trial court as to the absence of these two criteria did not constitute an abuse of discretion.

The common issues that would have justified maintaining this class action were the unconstitutionality of the Uniform Narcotic Drug Act as it applied to marijuana (Ill. Rev. Stat. 1969, ch. 38, pars. 22—1 through 22—49), and the right of those who had been convicted under the Act to have their convictions expunged and their fines and costs refunded. These were the two common questions that predominated over questions which would affect only individual members of the class, such as the nature of the offenses of which they were convicted and the amount of fines and costs paid. In a class action it is appropriate to litigate the questions of law or fact common to all members of the class and after the determination of the common questions to determine in an ancillary proceeding or proceedings the questions that may be peculiar to individual class members. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 340-42.) However, the question of the validity of the statute was decided by this court in People v. McCabe and the right of those convicted under the invalid statute to have their convictions expunged and their costs and fines refunded was established in People v. Meyerowitz. Thus, the common questions which predominate over the questions that relate only to the individual class members had been decided in these other cases. These questions are no longer controverted. All that remains are the questions that relate only to individuals who were convicted under the invalid statute: (1) Of what offense was each convicted? and (2) What were the fines and costs paid? These questions must be determined as to each individual. There is no common question which predominates to be adjudicated independently of these questions that relate only to the individuals.

McCabe has cited Ross v. City of Geneva (1978), 71 Ill. 2d 27, and Gulish v. United States (W.D. Pa. 1978), 78 F.R.D. 515, as precedent for certifying this class action despite the resolution of the common questions of validity, expungement and reimbursement. Both cases are inapposite. In Ross the class action was brought to resolve the validity of an ordinance imposing a surcharge on electric bills. Though individual surcharges would later be examined, the predominant question was the ordinance’s validity. The general validity question and the individual remedy questions were brought as part of the same proceeding. Similarly in Gulish, the Federal district court allowed the class action to proceed because the predominant question of the right to return of fines under the Tucker Act had been resolved in the same action by appellate review. (Neely v. United States (3d Cir. 1976), 546 F.2d 1059, rehearing denied (3d Cir. 1977), 554 F.2d 114.) In contrast, the action here is a separate and distinct case from the prior determinations in People v. McCabe and People v. Meyerowitz. At no time were there common questions in this action which predominated over the individual issues.

McCabe alleged that the common question is whether the class members may receive actual notice of their potential legal remedies to have their conviction records expunged and their fines and costs refunded. The plaintiff has misunderstood the common-question requirement. The trial court held that although notice is an element of a class action, the simple desire to notify other potential claimants is not justification, in and of itself, for the maintenance of a class action. The court held that McCabe is entitled to the expungement of his record and the recovery of his fine, but that he has no right or interest in the simple act of notifying others who might be entitled to similar relief. This holding does not constitute an abuse of the trial court’s discretion. Under our class action statute, the giving of notice to other members of the class is not mandatory; therefore, the class members have no clear right to notice. In fact, the determination of whether an action may be maintained as a class action and the determination of whether notice must be given, and in what manner and to whom, are separate discretionary determinations which the trial court must make. (Ill. Rev. Stat. 1977, ch. 110, par. 57.4.) Notice, therefore, is not a common question of law or fact which will satisfy the common-question prerequisite.

In this case, tied closely to the absence of the common-question prerequisite is the determination by the court that a class action would not result in increased efficiency in adjudicating the claims of those who had been convicted under the invalid statute. This requirement, which found its pronouncement in case law, is now incorporated in section 57.2(4) of our class action statute (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(a)(4)), which requires a finding that the class action is an appropriate method for the fair and efficient adjudication of the controversy. The supplement to the historical and practice notes to this section states that this requirement is derived from Rule 23(b)(3) of the Federal Rules of Civil Procedure. (Ill. Ann. Stat., ch. 110, par. 57.2(a)(4), Supplement to Historical and Practice Notes (Smith-Hurd Supp. 1978).) In a recent publication on class actions in Illinois, published before the adoption of our statute, the author, speaking of the requirements of Federal Rule 23(b)(3), states:

“Under this prerequisite, the court determines whether a class action in a particular case can best secure the economies of time, effort, and expense, and promote uniformity of decision or accomplish other ends of equity and justice sought to be attained in these actions.” (Forde, Class Actions in Illinois: Toward a More Attractive Forum For This Essential Remedy, 26 De Paul L. Rev. 211, 225 (1977).)

Although our statute requires a finding that the class action “is an appropriate method for the fair and efficient adjudication of the controversy” (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(a)(4)), whereas, Federal Rule 23(b)(3) requires the court to find that a class action “is superior to other available methods for the fair and efficient adjudication of the controversy,” the difference in the language does not require us to discard the construction that has been given to the Federal rule as it relates to the economies to be affected through the use of class actions.

The trial court in this case noted there would be no increased judicial efficiency through the use of a class action. Since the questions common to all claims had been previously determined, the court found that the remaining factual questions would require the examination of each court file involved and a separate determination in each case. The court further stated that the “class action would in no way render the disposition of the individual, factual questions any more expeditious.” The court also found that the class action would not avoid a multiplicity of suits. As to the necessity of using the class action to accommodate the claimants and to facilitate recovery by them, the trial court noted that it “has heretofore, on motion of certain defendants in their individual cases, granted the relief decreed in Meyerowitz ***.”

For these reasons we hold that the trial court did not abuse its discretion in denying relief to maintain the action in this case as a class action. This does not, however, reflect upon McCabe’s right to maintain his individual claim. The judgment of the appellate court is therefore reversed and the judgment of the circuit court of Champaign County is affirmed, and the cause is remanded to the circuit court of Champaign County.

Appellate court reversed; circuit court affirmed; cause remanded.

MR. JUSTICE MORAN,

dissenting:

I dissent. Initially, I take issue with what I consider to be an unduly narrow view of the phrase “questions of fact or law common to the class,” which is part of the second prerequisite for the maintenance of a class action under the statute (Ill. Rev. Stat. 1977, ch. 110, par. 57.2).

In sanctioning the dismissal of the class action, the majority relies primarily on the trial court’s determination that, in light of our prior decisions in People v. McCabe (1971), 49 Ill. 2d 338, and People v. Meyerowitz (1975), 61 Ill. 2d 200, there were no common questions of law or fact to be litigated. Asserting that the common questions (the unconstitutionality of the Uniform Narcotic Drug Act as it applied to marijuana and the right of those convicted to have their convictions expunged and their fines and costs refunded) predominate over any individual questions, the majority intimates that this action could have been maintained as a class action if the common questions had not been previously resolved. Thus, it is evident that the majority reads the common-question requirement to mean unresolved questions of fact or law common to the class. In effect, then, plaintiff’s claim is denied class action status merely because another individual has already sought and obtained the relief which plaintiff presently seeks on behalf of the class. In my view, this is an unjust result and one that would allow any potential member of any potential class, regardless of motive, to abort an otherwise valid class action against an alleged wrongdoer.

Here, each potential class member would have the same claim, i.e., expungment of his conviction and the return of any fines and costs paid. The class action would make the right of relief and recovery available to individual class members who, to a large extent, could not otherwise obtain it because they would be uninformed of its availability and because of the expense of a separate lawsuit. (See Gordon, The Common Question Class Suit Under the Federal Rules and in Illinois, 42 Ill. L. Rev. 518, 519-20 (1947).) Furthermore, the decision to exercise the common right to relief and recovery would foster a multiplicity of suits, thus defeating another purpose of class action litigation.

Not only does the majority preclude class action status, but the unperceived import of the majority’s reasoning will be to deny the right of others similarly situated to join as parties plaintiff. The statutory provision governing joinder of plaintiffs (Ill. Rev. Stat. 1977, ch. 110, par. 23), like the class action statute, requires that there be a “common question of law or fact.” Because all common questions have been previously resolved, the majority’s interpretation (that any common questions must be as yet unresolved) would thus also serve to bar the use of joinder.

Additionally, the majority cites the trial court’s determination that the class action would not result in any increased efficiency to the court or to the litigants in the adjudication of the claims. It finds that such determination was within the trial court’s broad discretionary powers. I disagree. Because it granted defendant’s motion to dismiss on the pleadings, the trial court had before it no evidence by which to arrive at such determination. In its order, the court summarily stated, “It is difficult to perceive how proceeding in a class action would in any way relieve the court or litigants of any burden or time expended ***.” It is my opinion that the plaintiff should have been permitted to have a hearing and to present evidence on this matter. For this reason, I feel that the trial court abused its discretion, and the determination which resulted from that abuse should not serve as a basis for the majority’s holding here.

In sum, I believe that plaintiff has satisfied the common-question requirement and that the trial court abused its discretion in granting defendant’s motion to dismiss. I would therefore reverse the trial court’s dismissal of the class action and remand the cause to that court for further proceedings.

MR. JUSTICE CLARK joins in this dissent.


author:
MR. JUSTICE WARD
      MR. JUSTICE CLARK,

text:
    (No. 50633.
    THOMAS J. SCANLON et al., Appellants, v. E. KARL FAITZ et al., Appellees.

      Opinion filed April 18, 1979.

    Rehearing denied May 30, 1979.

    CLARK, J., GOLDENHERSH, C.J., and MORAN, J., dissenting.

      Davis, Cichorski & Gardner, of Chicago (Paul E. Peldyak, of counsel), for appellants.
    Kozlowski & Smith, of Chicago (Joseph J. Kozlowski and John A. Smith, of counsel), for appellees.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiffs, Thomas Scanlon and James Hughes, brought suit in the circuit court of Cook County seeking a writ of mandamus directing Karl Faitz, in his capacity as the director of building and zoning of the village of Oak Lawn, and his codefendant, the village of Oak Lawn (Village), to allow the plaintiffs to proceed with the construction of two houses for which excavations had been completed. Acting upon an agreed set of facts and briefs, the circuit court ordered the writ to issue. The appellate court vacated the judgment and remanded the cause for a full hearing to determine whether under the circumstances the doctrine of estoppel ought to be applied against the defendants. (27 Ill. App. 3d 1072 (abstract).) After the hearing ordered by the appellate court, the circuit court again ordered that mandamus issue. The appellate court reversed and remanded (57 Ill. App. 3d 649), and we granted the plaintiff’s petition for leave to appeal (65 Ill. 2d R. 315).

Scanlon and Hughes are home builders. In 1973, they made a package purchase of five parcels of real estate, which included three contiguous 25-foot lots within the Village. On May 26, 1971, a predecessor in title to the three lots had submitted a written petition to the Village’s board of appeals for zoning variations. The predecessor asked for variations from the Village’s minimum 50-foot-frontage requirement to allow construction of two houses with frontages of only 3714 feet upon the three 25-foot lots. One week later, on June 2, 1971, the board of appeals held a public hearing and recommended that the variations be allowed. The board did not have jurisdiction itself to allow the variations because the variations sought exceeded 10%, which was the maximum the board could allow under its enabling ordinance. The matter was referred to the Village’s board of trustees (see Ill. Rev. Stat. 1971, ch. 24, pars. 11 —13—5, 11—13—6), and at a regular meeting of the board of trustees on June 15, 1971, a motion to follow the recommendation of the board of appeals was adopted.

On June 14, 1973, Scanlon filed applications for building permits to construct two houses; the permits were issued by Faitz on July 24, 1973. When the plaintiffs began excavating, a number of area property owners, all of whose houses were on lots with frontages of at least 50 feet, immediately complained. They prepared petitions, and some property owners appeared to object at meetings of the board of trustees and of the Planning and Development Commission. Pursuant to a directive from the board of trustees, Faitz notified the plaintiffs by telephone to stop building activities, and they promptly did so. Because the plaintiffs had not complied with certain procedures required by a local ordinance regulating the subdivision of land, the matter was later referred by the board of trustees to the Planning and Development Commission, which voted unanimously to deny the requested zoning variations. This suit followed.

The plaintiffs contend here that the defendants are estopped from blocking completion of the two houses because they relied on conduct of Village officers, viz., the actions of Village officials in 1971 to grant requested variations, and the issuance of building permits by the Village, and because the plaintiffs will otherwise suffer a substantial financial loss. The defendants argue that the Illinois Municipal Code requires passage of an ordinance to validate a zoning variation where the power to grant the variation is reserved to the municipality’s corporate authority. (Ill. Rev. Stat. 1971, ch. 24, par. 11—13—5.) Because the board of trustees only approved the recommendation of the board of appeals by the adoption of a motion and did not enact an ordinance, they contend that the board of trustees was free to revoke the illegally issued building permits.

There have been circumstances under which application of the doctrine of estoppel in pais has been allowed against municipalities (e.g., Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157; City of El Paso v. Hoagland (1906), 224 Ill. 263; Richards v. City of Highland (1978), 59 Ill. App. 3d 692; City of Marseilles v. Hustis (1975), 27 Ill. App. 3d 454; People ex rel. Beverly Bank v. Hill (1966), 75 Ill. App. 2d 69; Wehrmeister v. Carlman (1958), 17 Ill. App. 2d 171), but we do not consider it should be allowed under the circumstances here. The statute requiring public notice of hearings on variation requests was not observed, and we do not judge that the plaintiffs showed a clear right to the extraordinary remedy of mandamus. See White v. Board of Appeals (1970), 45 Ill. 2d 378, 381-82; Ganley v. City of Chicago (1974), 18 Ill. App. 3d 248.

The appellate court properly pointed out the public interest in the matter of petitions for zoning variations. Here a fair opportunity to present objections to the granting of the variations was never had by interested members of the public. Section 11—13—6 of the fllinois Municipal Code provides:

“No variation shall be made by the board of appeals in municipalities of 500,000 or more population or by ordinance in municipalities of lesser population except in a specific case and after a public hearing before the board of appeals of which there shall be a notice of the time and place of the hearing published at least once, not more than 30 nor less than 15 days before the hearing, in one or more newspapers published in the municipality, or, if no newspaper is published therein, then in one or more newspapers with a general circulation within the municipality. ***” (Ill. Rev. Stat. 1971, ch. 24, par. 11-13-6.)

Only one week elapsed between the filing of a petition for the zoning variations with the board of appeals on May 26, 1971, and the hearing and recommendation to grant the variations on June 2, 1971. There is no evidence in the record of any such prior notice of hearing having been given. Indeed it appears it could not have been given, because the petition for the variations was presented only seven days prior to the hearing.

The noncompliance by the Village with the statutorily mandated procedures for granting of the variations thus went beyond the failure of the Village to have enacted a validating ordinance, and it resulted in a denial of participation in the consideration of the petition for variation by members of the public who might be immediately and adversely affected by the allowance of the petition. Actual notice to homeowners in the area was given only when excavation commenced. Objecting property owners took steps at once to register their complaints with the Village authorities.

Under the circumstances here, we cannot say that this is a situation where fairness and justice require application of the equitable doctrine of estoppel. The circuit court erred in ordering issuance of a writ of mandamus. The appellate court was correct in reversing the judgment. We consider that under the circumstances the appellate court was correct in remanding the cause to the circuit court for entry of an order directing the Village to refund the permit fees paid by the plaintiffs for the invalid permits. The judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

dissenting:

The issue in this case is whether the circuit court abused its discretion in weighing two substantial and conflicting interests. On the one side are the interests of two home builders, Thomas Scanlon and James Hughes, who, in good faith, relied to their detriment upon (1) the village board’s favorable disposition of a request for a zoning variation, and (2) the issuance, by the village’s director of building and zoning, of building permits, which, on their face, appeared to be valid. On the other side are the interests of the village and, indirectly, of the neighbors, who allegedly were not afforded an adequate opportunity to object to the requested zoning variation. The circuit court held that, on this record, the equities favored the two home builders, and commanded the village to permit the two home builders to complete their work. The majority of this court, however, reverses the circuit court, apparently finding that the village’s failure to comply with a notice statute (which neither party cited) required the circuit court to allow the village to escape application of the doctrine of equitable estoppel. I disagree.

The leading case on the application of estoppel in pais against a municipality is Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157. There, this court explained the application of the rule as follows:

“The general rule is that a city cannot be estopped by an act of its agent beyond the authority conferred upon him. ***
The general rule is qualified, however, to enable a party to invoke the doctrine where his action was induced by the conduct of municipal officers, and where in the absence of such relief he would suffer a substantial loss and the municipality would be permitted to stultify itself by retracting what its agents had done.” (21 Ill. 2d 160-61.)

Thus, in Cities Service, this court affirmed the holding of the circuit court that “the construction work was undertaken by the plaintiff after affirmative action and apparent approval by public authorities, and that the city and its officials are estopped from preventing erection of the service station.” (21 Ill. 2d 157, 159.) It cannot seriously be disputed that Scanlon and Hughes would not have purchased the property and spent substantial sums toward developing it if the village had not led them to believe that their plans had been approved by the village. Yet the majority attempts to distinguish Cities Service on the grounds that here the granting of the variation apparently did not comply with section 11—13—6 of the Illinois Municipal Code, requiring published notice of board of appeals hearings.

Neither party has relied upon the statute however, and in seeking to apply it here, without the benefit of adequate legal argument and factual proof, the court has wandered from the central issue in this case. First, the statute is not jurisdictional and therefore, in itself, not dispositive of this case. Second, since the village failed to raise this issue, the plaintiffs have not had an opportunity to demonstrate that the local residents had constructive notice of the requested variance. There is, in fact, some evidence in the record indicating that the requested variance may have been included in a published agenda of the village board.

Finally, as I read the statute, the duty to publish was that of the board of appeals, and the failure to publish therefore is not chargeable to Scanlon and Hughes. Although the language of the statute is not explicit on this point, my construction is in accord with the general rule in most jurisdictions. (Cf. generally 3 R. Anderson, American Law of Zoning sec. 20.17 et seq. (2d ed. 1977); Annot., 38 A.L.R.3d 167, sec. 5 (1971).) To punish the plaintiffs for not looking behind the apparently valid actions of the village is, therefore, in my opinion, manifestly unjust. It can lead only to higher legal costs and higher housing costs for everyone. The decision of the circuit court wisely avoided such a course, and I would affirm its judgment and permit the writ to issue. See People ex rel. Deddo v. Thompson (1918), 209 Ill. App. 570 (mandamus), cited with approval in Cities Service.

GOLDENHERSH, C.J., and MORAN, J., join in this dissent.


author: MR. JUSTICE RYAN

text:
    (No. 50870.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant-Appellee, v. CHICAGO TITLE AND TRUST COMPANY et al., Appellees-Appellants.

      Opinion filed April 3, 1979.

    Rehearing denied May 30, 1979.

      CLARK, J., took no part.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney and Henry A. Hauser, Nancy Kraject, and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for the People.
    Concannon, Dillon, Snook & Morton, of Chicago (William R. Dillon and John B. Dillon, of counsel), for appellee Chicago Title 8c Trust Co.
    Chapman & Cutler, of Chicago (Keehn Landis and Richard G. Smolev, of counsel), for appellee Harris Trust and Savings Bank.
    Jenner & Block, of Chicago (Richard T. Branch and William C. Staszak, of counsel), for appellee Cosmopolitan National Bank of Chicago.
    Friedman & Koven and Feiwell, Galper & Lasky, Ltd. (James K. Gardner and Daniel C. Meenan, Jr., of counsel), all of Chicago, for appellee American National Bank 8c Trust Co.
    Stanley J. Adelman, of Sonnenschein, Carlin, Nath & Rosenthal and Bowles & Ward (Clyde O. Bowles, Jr., of counsel), all of Chicago, for appellee La Salle National Bank.
    Peter V. Baugher, of Schiff, Hardin 8c Waite; Morris G. Dyner, of Fischel & Kahn; Alan S. Rutkoff, of Altheimer 8c Gray; and Richard T. Wimmer, of Collins & Amos, all of Chicago, for appellee land trust beneficiaries.
    Bernard Allen Fried, Jack Du Bow, and Jerome Feldman, of Chicago, for other appellee land trust beneficiaries.
    William H. Avery, George A. Platz, and Sidley 8c Austin, of Chicago, for amici curiae Corporate Fiduciaries Association of Illinois et al.

   MR. JUSTICE RYAN

delivered the opinion of the court:

This case is a consolidation of six separate actions brought in the name of the People of the State of Illinois to recover unpaid real estate taxes on land held in land trusts. The State seeks to impose personal liability for the real estate taxes on three entities: the banks or trust companies in their individual corporate capacities; the banks or trust companies in their capacities as land trustees of land trust property, and the beneficiaries of the land trust, all as “owners” of the tracts of land trust property. The trial court found the trustees in their individual corporate capacities liable and dismissed the cases as to the banks and trust companies as trustees and as to the beneficiaries. Appeals were perfected by the various losing parties. This court granted motions for direct appeal to this court under Rule 302(b) (58 Ill. 2d R. 302(b)).

The Revenue Act of 1939, section 27a (Ill. Rev. Stat. 1977, ch. 120, par. 508a), imposes liability on the “owner” of real estate for unpaid taxes on that land. It provides:

“The owner of real property on January 1 *** in any year shall be liable for the taxes of that year.”

Section 275 of the Act (Ill. Rev. Stat. 1977, ch. 120, par. 756) authorizes suit by the county board in the name of the People of the State of Elinois to recover the unpaid taxes on forfeited property. The question posed in these cases is who is the owner of real estate held in a land trust against whom suit may be brought.

The factual bases of these six appeals are nearly identical. A land trust was created by execution of a deed in trust transferring all legal and equitable title to a trustee. The deed specifically provides that one dealing with the trustee need not inquire about the trust agreement and stipulates that the interest of the beneficiary is personal property. The deed was recorded. A second document, the trust agreement, was simultaneously executed, though not recorded. That agreement recites that all legal and equitable title remains with the trustee with an assignable personal property interest in the beneficiary. The beneficiary retains absolute control of the management and receives all the proceeds of the property. Under the agreement, all money advanced by the trustee must be paid by the beneficiary, and the trustee is not required to pay any taxes or assessments. The beneficiary may order the land sold at any time, and the trustee may not act except on written authorization of the beneficiary.

In each of these cases a complaint was filed against the trustee in its individual capacity, and was subsequently amended to add as defendants the trustee as trustee and the beneficiaries of the land trust. Prior to this action, the parcels had been listed on the county collector’s application for judgment and sale for delinquent taxes, the Cook County circuit court had ordered the real estate sold, and it was offered for sale. The real estate was not purchased and was forfeited to the State. (Ill. Rev. Stat. 1977, ch. 120, par. 727.) By this complaint the State seeks to impose personal liability under sections 27a and 275 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, pars. 508a, 756) for the unpaid real estate taxes on the “owners” of the land held in the land trusts. The complaint alleges that the three classes of defendants were owners of the real estate on which taxes were unpaid. The State alleges that each defendant is an owner under the statute and is therefore liable for the unpaid taxes.

The trial court dismissed the complaints against the beneficiaries and trustees as trustees. The court, however, ruled that the trustees in their individual capacities were the owners under section 27a and refused to dismiss those defendants. In each instance the trial court entered appropriate orders finding no reason to delay an appeal. We have consolidated these cases and allowed a direct appeal under Rule 302(b).

Normally, the entire tax liability for real estate would be met through a judgment and sale of the property. These cases have arisen however, because, for an increasing number of inner-city parcels, the marketable price is well below the outstanding tax bills. (See Lawlor, Real Prop erty Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Illinois: The Role of the Collection Provisions of the Illinois Revenue Act, 26 De Paul L. Rev. 1 (1976).) There simply are no buyers willing to pay the taxes in order to obtain the property. As a consequence, the property has been forfeited to the State and the tax bills remain unpaid. Though available for more than 100 years (compare 1872 Ill. Laws 18, sec. 59, and 1872 Ill. Laws 55, sec. 230, with Ill. Rev. Stat. 1977, ch. 120, par. 508a, and Ill. Rev. Stat. 1977, ch. 120, par. 756), these provisions for the enforcement of personal liability are being utilized against land trusts for the first time in these cases.

The Illinois land trust is a unique creation of the Illinois bar, though its acceptance elsewhere has received a great deal of attention. (See Arntson, The Virginia Land Trust—An Overlooked Title Holding Device for Investment, Business and Estate Planning Purposes, 30 Wash. & Lee L. Rev. 73 (1973); McKillop, The Illinois Land Trust in Florida, 13 U. Fla. L. Rev. 173 (1960); Comment, The Illinois Land Trust and Nebraska Law, 47 Neb. L. Rev. 101 (1968); Note, Land Trusts in New York, 37 St. John’s L. Rev. 123 (1962).) Its origin is rooted in case law rather than statute. (See Schumann-Heink v. Flosom (1927), 328 Ill. 321; Hart v. Seymour (1893), 147 Ill. 598; Garrett, Land Trusts, 1955 U. Ill. L.F. 655, 656-59.) The land trust has, over the years, served as a useful vehicle in real estate transactions for maintaining secrecy of ownership and allowing ease of transfer. Despite recent disclosure statutes, e.g., “An Act relating to disclosure of beneficiaries of land trusts and owners of property allegedly violating building laws,” section 1 (Ill. Rev. Stat. 1977, ch. 80, par. 81), and “An Act to require disclosure *** of all beneficial interests in real property held in a land trust ***,” section 2 (Ill. Rev. Stat. 1977, ch. 148, par. 72), the land trust remains a widely utilized and useful device. See H. Kenoe, Kenoe on Land Trusts (Ill. Inst. Cont’g Legal Educ. 1976).

In a land trust the legal and equitable title lies with the trustee and the beneficiary retains what is referred to as a personal property interest. (Chicago Federal Savings & Loan Association v. Cacciatore (1962), 25 Ill. 2d 535, 543.) It is important to note, however, that though referred to as personal property, most of the usual attributes of real property ownership are retained by the beneficiary under the trust agreement. In fact, the only attribute of ownership ascribed to the trustee is that relating to title, upon which third parties may rely in transactions where title to the real estate is of primary importance. A third party, even the State, may generally rely on the title of the trustee in such cases. Keessen v. Zarattini (1969), 119 Ill. App. 2d 284, 293; see also First Lien Co. v. Marquette National Bank (1973), 56 Ill. 2d 132.

For example, in Chicago Federal Savings & Loan Association v. Cacciatore (1962), 25 Ill. 2d 535, a second mortgage was issued on real estate held in a land trust. Prior to the drawing of that mortgage, a Federal tax lien for unpaid income taxes had been issued against the beneficiary of the property held by the land trust. The Federal government asserted that its tax lien had priority over the mortgage. This court held that the mortgagee could rely on the title and his lien had priority. The primary concern in establishing priority of liens is the title. Similarly, in First Lien Co. v. Marquette National Bank (1973), 56 Ill. 2d 132, the plaintiff sought the issuance of a tax deed. The primary concern in the issuance of a tax deed- is the transfer of title. A procedure which gave notice to the titleholder was, accordingly, approved under the statute. Ownership has been imputed to the land trust trustee in other instances where title is the primary concern. (See, e.g., Marshall v. Solomon (1948), 335 Ill. App. 302, 309 (mortgage foreclosure need not include beneficiary).) The trustee may, of course, on direction, represent the property, but where the primary issue involves ownership rather than title (cf. Chicago Federal Savings & Loan Association v. Cacciatore (1962), 25 Ill. 2d 535), reliance on bare legal title would be inappropriate.

The term “owner,” as applied to land, has no fixed meaning applicable under all circumstances and as to any and every enactment. (See Keesling, Conflicting Conceptions of Ownership in Taxation, 44 Cal. L. Rev. 866 (1956).) It usually denotes a fee simple estate, but in Illinois it may include “one who has the usufruct, control or occupation of land with a claim of ownership, whether his interest be an absolute fee or a less estate.” (Coombs v. People (1902), 198 Ill. 586, 588.) Title to property does not necessarily involve ownership of the property. Title refers only to a legal relationship to the land, while ownership is comparable to control and denotes an interest in the real estate other than that of holding title thereto. Restatement (Second) of Trusts sec. 2, comment d, and sec. 10, comment a (1959).

The key elements of ownership are control and the right to enjoy the benefits of the property. This is especially true in tax law, where the taxpayer pays “a portion of the expense incurred in the protection of his person or property ***.” (French Republic v. Board of Supervisors (1923), 200 Ky. 18, 22, 252 S.W. 124, 125; 72 Am. Jur. 2d State and Local Taxation sec. 836 (1974).) It is a generally accepted principle that taxes are imposed for benefits received. Thus, where the trust beneficiary is the recipient of all the benefits of the property and controls the management of the property, he is the party most benefited by the ends of taxation, regardless of who holds the title. Revenue collection is not concerned with the “refinements of title”; it is concerned with the realities of ownership.

The Federal income tax statute has faced the problem of ownership and concluded that mere title is not sufficient for taxation. In Corliss v. Bowers (1930), 281 U.S. 376, 74 L. Ed. 916, 50 S. Ct. 336, the Supreme Court held that a revocable trust created by a husband for his wife with a remainder to his children did not remove income tax liability from the husband. As the court concluded, “taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed — the actual benefit for which the tax is paid.” (281 U.S. 376, 378, 74 L. Ed. 916, 917, 50 S. Ct. 336.) Similarly, in Curry v. McCanless (1939), 307 U.S. 357, 83 L. Ed. 1339, 59 S. Ct. 900, the court noted that whether an item was a source of “actual or potential wealth” was “an appropriate measure of any tax imposed on ownership.” (307 U.S. 357, 366, 83 L. Ed. 1339, 1347, 59 S. Ct. 900, 905.) Finally, in Commissioner v. Clifford (1940), 309 U.S. 331, 84 L. Ed. 788, 60 S. Ct. 554, the court held that a trust created for the grantor’s wife did not affect ownership, though it vested title in the trustee. As the court aptly concluded, “It is hard to imagine that respondent felt himself the poorer after this trust had been executed or, if he did, that it had any rational foundation' in fact.” 309 U.S. 331, 336, 84 L. Ed. 788, 792, 60 S. Ct. 554, 557.

The Federal tax statute, as amended in 1954, adopted the Supreme Court’s “control” definition of ownership. (26 U.S.C. secs. 671 to 678 (1978).) The statute now explicitly considers the realities of control rather than the technicalities of title. Recently the United States Supreme Court again emphasized its long held position that “[t] he Court has never regarded ‘the simple expedient of drawing up papers’ [citation] as controlling for tax purposes when the objective economic realities are to the contrary.” (Frank Lyon Co. v. United States (1978), 435 U.S. 559, 573, 55 L. Ed. 2d 550, 560, 98 S. Ct. 1291, 1298.) Judge Cardo zo stated: “ ‘Taxation is a hard fact’ [citation], and, for the determination of its incidence, the realities of ‘actual and practical ownership’ [citation] must count for more in any just system than the style or label of estates.” (People ex rel. Clark v. Gilchrist (1926), 243 N.Y. 173, 181, 153 N.E. 39, 41.) When all of the benefits of ownership flow to a particular person, that person is the owner for tax purposes. Complete control is, under the Federal tax statutes, taxable ownership.

Similar to the Federal approach, Illinois taxation also looks to the realities of control rather than the refinements of title. In Board of Trustees v. Board of Supervisors (1875), 76 Ill. 184, this court found that though property had been transferred to a corporate body in order to operate a university, that body was not taxable because the property remained under the control of the State. The court looked through the trustees ’ title to the elements of control exercised by the State. As was there stated:

“It will be observed that the persons appointed for the government of the university are created and called trustees. They derive all of their powers from the State, and they act for and on behalf of the State; and the power which conferred authority on them to act, may withdraw or modify it at pleasure.” 76 Ill. 184, 187.

In Montgomery v. Wyman (1889), 130 Ill. 17, another university case, it was noted that though legal title may be held by a trustee, the property would still be “property of the institution of learning” for the purpose of tax exemption. In Hood v. Commonwealth Trust & Savings Bank (1941), 376 Ill. 413, the court concluded that one should look beyond the bank books and certificates to determine the “real” owners of stock in an insolvent bank. 376 Ill. 413, 425-26.

In Forman Realty Corp. v. Brenza (1957), 11 Ill. 2d 531, this court was faced with determining ultimate liability for real estate taxes. A series of complicated corporate reorganizations obscured the actual ownership, though at all relevant times City National Bank and Trust Company held title to the property in a land trust. As this court noted:

“From the foregoing factual situation it seems readily apparent that at all times here in issue Forman Realty Trust and its alter ego, Forman Realty Corporation [both beneficiaries of the City National Bank and Trust Company land trust], or their wholly-owned subsidiary building corporations, have been the legal owners of the parcels of property in question and primarily liable for payment of tax impositions against such property.” (11 Ill. 2d 531, 537.)

Taken together, these cases indicate a clear policy of the tax statute to look beyond the mere holder of title for a determination of ownership. While title may be a factor in determining ownership it is not decisive. Of far greater importance is control of the property and the right to its benefits.

In examining a land trust it is apparent that true ownership lies with the beneficiaries though title lies with the trustee. The trustee derives all of his power from the beneficiary and acts solely on the beneficiary’s behalf. The beneficiary may withdraw or modify the trustee’s authority at any time. (Cf. Board of Trustees v. Board of Supervisors (1875), 76 Ill. 184, 186-87.) Indeed, there is not a single attribute of ownership, except title, which does not rest in the beneficiary. The rights of creation, modification, management, income and termination all belong to the beneficiary. (Cf. Wendt v. Myers (1974), 59 Ill. 2d 246, 253.) In reality the transfer to the trustee is a formality involving a shifting of legal documents. The land trust is, in fact, a fiction which has become entrenched in the law of this State and accepted as a useful instrument in the handling of real estate transactions. Outside of relationships based on legal title, the trustees’ title has little significance. Particularly in tax law, the realities of ownership are far more important than the technicalities of transfer. In other branches of law, where control is the best indicia of ownership, appellate courts have found the beneficiaries to be owners. See, e.g., Dunlop v. McAtee (1975), 31 Ill. App. 3d 56, 59 (mechanics lien); Robinson v. Walker (1965), 63 Ill. App. 2d 204 (dramshop); Brazowski v. Chicago Title & Trust Co. (1935), 280 Ill. App. 293 (tort liability).

The words of a statute must be read in light of the purposes it seeks to serve. (Deere v. Chapman (1861), 25 Ill. 498, 500; Woodward Governor Co. v. City of Loves Park (1948), 335 Ill. App. 528, 535.) In addition, words must be read to reach a common-sense result. (Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 575.) The statute here in question is a revenue statute. A revenue statute has as its foundation the collection of taxes for benefits to be received. In light of that goal it would be incongruous to read the term “owner” in section 27a as meaning “titleholder” when the land trust titleholder has no control over the land and receives no benefits of the tax or of ownership. A common-sense definition of “owner” as used in a tax statute must encompass the beneficiary of a land trust, because that beneficiary controls the purchase, sale, rental, management and all other aspects of land ownership. The titleholding trustee may act only on the beneficiaries’ written direction. As noted above, Federal tax law has long recognized that an owner need not be a titleholder, and Hlinois tax law has long recognized that ownership may be separated from title. These holdings cannot be ignored in interpreting “owner” as used in section 27a (Ill. Rev. Stat. 1977, ch. 120, par. 508a). The realities of ownership clearly indicate that a land trust beneficiary is an owner for the purpose of that section. Being an owner under that section, the beneficiary is personally liable for unpaid real estate taxes, and the State may seek to enforce that liability under section 275 (Ill. Rev. Stat. 1977, ch. 120, par. 756).

Accordingly, the judgments of the circuit court are affirmed as to the trustees in their representative capacities, reversed as to the trustees as individuals, and reversed as to the beneficiaries. The cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.

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