author: MR. JUSTICE MORAN MR. JUSTICE CLARK,

text:
    (No. 50158.
    LA GRANGE STATE BANK, Trustee, Appellee, v. THE COUNTY OF COOK et al.—(Salvatore Terracina et al., Appellants.)

      Opinion filed April 3, 1979.

      CLARK and KLUCZYNSKI, JJ., dissenting.
    Sneider & Troy, of Chicago (Richard J. Troy, of counsel), for appellants.
    Rudnick & Wolfe, of Chicago (Theodore J. Novak and Don E. Glickman, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The beneficial owners of a 2.25-acre parcel of land, held in trust by plaintiff, La Grange State Bank, sought a special use permit to construct an extended-care nursing-home facility. Although the Cook County zoning board of appeals recommended that the permit be granted, the county board of commissioners denied the permit. The plaintiff filed an action for declaratory judgment in the Cook County circuit court seeking to have the zoning restriction declared invalid and unconstitutional as applied to plaintiff’s property. After granting leave to neighboring property owners to intervene as parties defendant, the circuit court held on behalf of defendants. The appellate court reversed (53 Ill. App. 3d 79), and we granted intervenors leave to appeal. Defendant Cook County is not involved in this appeal.

The property is in an unincorporated residential area of Cook County and is located on the northeast comer of Gilbert Avenue and 52d Place in Lyons Township. It is zoned for R — 3 single-family residence and is presently improved with a 1 Mi-story single-family home. The frontage measures 233 feet along Gilbert Avenue to the west, and 417 feet along 52d Place to the south. Single-family homes comprise the area surrounding the property to the east, west and south. The Community Memorial Hospital campus lies on 35 acres adjacent to the subject property to the north, with the hospital building itself located in the northeast corner of that parcel and within the village of La Grange. A recently constructed four-story professional office building, also in La Grange, is situated immediately to the north of the hospital campus. Both are permitted uses under the La Grange zoning ordinance. North of the office building are more single-family homes.

The present amended zoning ordinance of Cook County has been in effect since 1960. Plaintiff purchased the subject property in 1972 for $90,000 and admittedly knew of the zoning classification at that time.

Plaintiff’s proposed plan for the nursing facility provides for a four-story, 165-bed building covering approximately 12% of the 2.25-acre site. The structure would be 43 feet 7 inches high, and each floor would contain approximately 13,000 square feet. There would be parking space for over 80 cars, this area to cover about 26% of the site.

The beneficiaries of the land trust which holds title to the subject property have entered into a 30-year lease agreement with Americana Health Care Corporation which would allow Americana to operate an extended-care nursing facility on the property. The revenues, projected over the period of the lease, are estimated at $250,000 to $300,000 per year, compared to the current annual rent of $3,360 for the single-family residence. The anticipated value of the proposed facility is $2.5 million to $3 million, whereas, if the property were developed with four single-family homes, the total value would be about $200,000 to $250,000.

Plaintiff presented uncontroverted testimony that a need existed in the area for a facility such as that proposed, and that it would be convenient to locate such a facility near a hospital. Plaintiff’s expert witnesses testified that the proposed use, considering the design of the facility and proposed landscaping, would have no adverse impact on the surrounding residential properties. The conclusion of these witnesses was that the proposed use is the highest and best use of the property.

Defendant’s expert witnesses testified that the highest and best use of the property is for single-family residences, as presently zoned. They, as well as the intervenors who testified, stated that the proposed facility would be an intrusion into the single-family residential neighborhood and would depress market values of surrounding homes. In the opinion of defendant’s experts, homes located across 52d Place, valued between $35,000 and $50,000, and also the home immediately east of the subject property, would be the most severely affected. Estimates of the degree of damage to these homes varied from a 10% to 20% decrease in value to almost total diminution in building value. It was posited that other homes east and south of the subject property, valued at upwards of $60,000, would suffer various degrees of damage to value, while homes valued at $75,000 to $100,000, directly across Gilbert Avenue and within the village of Western Springs, would be damaged to a lesser degree. The latter homes face toward the west, away from the subject property, and are shielded by a stockade fence which runs behind the homes along the west side of Gilbert Avenue.

The circuit court concluded that the owner’s proposal conformed to the standards set out in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, and in section 6.9(f) of article VI of the Cook County zoning ordinance, which governs special uses, with the following exception:

“The height, size and design of the proposed structure on the subject property will be injurious to the use and enjoyment of other property in the vicinity for single family residences, which is a purpose already permitted, and will substantially diminish and impair property values within the neighborhood.”

The rules applicable to the challenge of zoning restrictions have been long established. Because zoning is mainly a legislative function (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428), it is primarily within the province of the local municipal body to determine the uses of property and to establish zoning classifications (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46; Morgan v. City of Chicago (1938), 370 Ill. 347, 350). As this court has previously asserted:

“It is clear from many holdings of this court that a zoning ordinance will be upheld if it bears any substantial relationship to the public health, safety, comfort or welfare. An ordinance will be presumed to be valid, and the one attacking an ordinance bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. [Citations.] ” Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80.

The relevant factors that the trial court may consider in determining the validity of a zoning decision were enunciated by this court in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47. In the special use context, these factors have been summarized as follows: “the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property’s value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to' the hardship imposed upon the property owner by the existing and the proposed zoning uses.” (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111-12.) No one factor is controUing. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 47.

The plaintiff emphasizes that if the special use permit were granted, the subject property would be worth much more than under the existing classification. We note, initially, that plaintiff obtained the property with fuH knowledge of the preexisting zoning classification. Although this fact does not preclude a chaUenge to the denial of the special use permit, it does have a bearing on plaintiff’s claim. (Standard State Bank v. Village of Oak Lawn (1963), 29 Ill. 2d 465, 470; Kuiken v. County of Cook (1961), 23 Ill. 2d 388, 394.) Furthermore, in probably all instances of restrictions on property, the property would be worth more if the restriction were not effective. (Grobman v. City of Des Plaines (1975), 59 Ill. 2d 588, 595; Evanston Best & Co. v. E.M. Goodman (1938), 369 Ill. 207, 211.) It is not the mere loss in value that is significant. Rather, the loss in value to the plaintiff must be considered in relation to the public welfare. Only when the public welfare does not require the restriction and resulting loss does the loss in value become significant. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 47.) We are satisfied that the loss in value to plaintiff as the result of the ordinance restriction is reasonably justified by the public welfare. The testimony of plaintiff’s witnesses, not unexpectedly, conflicted with that of defendants’ witnesses as to whether and to what extent the proposed use would adversely affect the value of the surrounding residential property. While differing opinions do not necessarily mean that plaintiff has failed in his burden of proof (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 113), here the trial court specifically found that, based upon the evidence, the proposed use would substantially diminish and impair property values within the neighborhood. After carefully reviewing the record, we cannot say that this determination was against the manifest weight of the evidence, the standard of review in zoning cases. Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 516-17.

Of paramount importance is the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established. (Standard State Bank v. Village of Oak Lawn (1963), 29 Ill. 2d 465, 469; River Forest State Bank & Trust Co. v. Village of Maywood (1962), 23 Ill. 2d 560, 563.) The surrounding area in this instance is predominantly residential in character and fully developed. The hospital and professional office building, to the north and within the city of La Grange, are the only exceptions. Plaintiff argues that the proposed use is a natural extension of the office-building and hospital complex. Zoning boundaries must be drawn, however, and the mere fact that the property is adjacent to a district which permits less restrictive uses does not render denial of the special use permit invalid. (See La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 431.) This is significant here, for the subject property is located outside of the corporate boundary within which the hospital and office building lie.

In determining the validity of a zoning decision, the property’s suitability for presently zoned purposes must also be examined. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 47; Duggan v. County of Cook (1975), 60 Ill. 2d 107, 112.) The evidence discloses that after approximately $4,000 to $5,000 worth of landfill is added, the property wiH be suitable for division into four single-family residential lots. Plaintiff has made no showing to the contrary. It was admitted that the property had not been listed or advertised, nor any attempt made to sell or develop the property for single-family use since it was acquired by the plaintiff.

It is not the court’s function in zoning cases to substitute its judgment for that of the local legislative body. Rather, the court is to determine whether the legislative decision which resulted in the restriction “ ‘involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare.’ ” (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 180, quoting La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428.) We agree with the trial court that plaintiff has failed to overcome the presumption of validity of the ordinance as applied. Specifically, plaintiff has failed to establish “by clear and convincing evidence that the existing ordinance, as applied to [plaintiff’s] property, is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare.” Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111.

Accordingly, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE CLARK,

dissenting:

I find it significant that the zoning board of appeals recommended approval of the special use permit, but the county board of commissioners, without opinion, did not. I believe some deference should be given the zoning board, especially under the facts of this case.

It is true that it is primarily within the province of the local municipal body to determine the uses of property and establish zoning classifications. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46.) A court may not overrule the decision of that body “where the reasonableness of the ordinance is fairly debatable.” (Hartung v. Village of Skokie (1961), 22 Ill. 2d 485, 493.) But the presumptive validity of such an ordinance is dependent upon the real and substantial relationship between the ordinance’s restrictions and “the public health, safety, morals, comfort and general welfare.” (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46.) It is for that reason that the decision to grant or deny a special use, which is a legislative determination, is subject to judicial review (Hartung v. Village of Skokie (1961), 22 Ill. 2d 485, 498; Pioneer Trust & Savings Bank v. County of McHenry (1968), 41 Ill. 2d 77, 84; Kotrich v. County of Du Page (1960), 19 Ill. 2d 181, appeal dismissed (1960), 364 U.S. 475, 5 L. Ed. 2d 221, 81 S. Ct. 243): “[T]he denial of a special use permit must bear a ‘real and substantial relation to the public health, safety, morals or general welfare. ’ ” (Lazarus v. Village of North-brook (1964), 31 Ill. 2d 146, 151-52.) The fundamental policy consideration is this: “[E] very owner has a right to use his property in his own way, subject only to the restraint necessary to secure the common welfare.” (Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Chicago Board of Appeals (1962), 25 Ill. 2d 65, 70.) Zoning laws implement that restraint, but are permitted only pursuant to the police power of the State.

The factors considered in making the determination of whether a denial of a special use permit bears a relation to public health, safety, morals or general welfare “include the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property’s value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses.” (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111-12; accord, La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47.) “No one factor is controlling. It is not the mere loss in value alone that is significant, but the fact that the public welfare does not require the restriction and resulting loss.” (Emphasis added.) (LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 47.) “Ultimately if it clearly appears that the relative gain to the public is small when compared with the hardship imposed upon the property owner by the zoning restriction, there is then no valid basis for the exercise of the police power to so limit the owner’s right to the use of his property.” Duggan v. County of Cook (1975), 60 Ill. 2d 107, 112. Accord, Pioneer Trust & Savings Bank v. County of McHenry (1968), 41 Ill. 2d 77, 85.

That is controlling here. I agree with the appellate court that the evidence is persuasive: the public welfare does not require denial of the special use. The proposed facility “would complement the community hospital and complete yet another segment” in the de facto development effort “to meet the expanding health care needs of the community at large.” (53 Ill. App. 3d 79, 87.) The public would be benefited rather than harmed. Allowance of an extended-care facility as a permitted special use supports this view. Significantly, the zoning board of appeals agreed, since it concluded the owners’ proposal met the six standards for recommending the special use (Cook County Zoning Ordinance, art. VI, sec. 6.9(f)).

Denial of the permit will result in considerable harm to the owners. Testimonial evidence showed there was little vacant land in the area; that the highest and best use of the subject property is the proposed use; that rental revenues accruing to the owners from the proposed facility (to be operated by Americana Health Services Corp.) would amount to $250,000 to $300,000 annually compared to the current annual rent of $3,360 for the single-family residence; and that the proposed use would give the property a value of $200,000 compared to the $100,000 maximally estimated for single-family use. (Cf. Hartung v. Village of Skokie (1961), 22 Ill. 2d 485, 496, where this court found “unrefuted hardship to the plaintiffs” whose proposed use (motel and restaurant) would have enhanced the value to $190,000 from $60,000 (for residential use).)

I do not share the fear that neighboring properties will diminish in value due to the proposed facility. The hospital, next door to the subject property, has “established a long-standing change in the character of the area” (53 Ill. App. 3d 79, 88), and has not seriously threatened the economic interests of its neighbors’ properties or inhibited construction of expensive houses. The proposed facility would simply become a component in the already established medical complex in the area. Moreover, a substantial amount of landscaping would surround the 43-foot-high structure. A six-foot-high screen and trees would comprise a buffer. Many, if not most, of the residences adjacent to the property are screened off or face away from the site.

In sum, I find from the evidence that the proposal would benefit the public, is consistent with existing, surrounding uses, and would not harm the value, use or enjoyment of nearby properties. On the other hand, denial of the special use would injure the owners. For these reasons, I would affirm the judgment of the appellate court.

MR. JUSTICE KLUCZYNSKI joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE CLARK MR. JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 50409.
    RICHARD GRISSOM, Appellant, v. THE BOARD OF EDUCATION OF BUCKLEY-LODA COMMUNITY SCHOOL DISTRICT NO. 8 et al., Appellees.

      Opinion filed April 3, 1979.

      UNDERWOOD, J., dissenting.
    Allen & Korkowski & Associates, of Rantoul, for appellant.
    David K. Henriksen, of Thomas, Mamer, Haughey & Miller, of Champaign, for appellees.
   MR. JUSTICE CLARK

delivered the. opinion of the court:

The board of education of Buckley-Loda Community School District No. 8, defendant, dismissed the plaintiff, Richard Grissom, a tenured teacher, at the end of the 1973-74 school year. At a meeting of the board on March 25, 1974, it had voted not to rehire Grissom, and had sent him a notice of dismissal the following day. Grissom, within the statutorily required 10 days (Ill. Rev. Stat. 1973, ch. 122, par. 24—12), requested a hearing and a bill of particulars, and stated that the apparent causes for his discharge were remediable, thus entitling him to a warning which had not, the board agrees, been given. The board sent a bill of particulars, which Grissom maintains was inadequate, and set a date for the hearing, which started May 7, 1974, and continued on subsequent dates through the summer of 1974. Following the hearing, the board made findings and voted to dismiss the plaintiff, who filed for administrative review in the circuit court of Ford County (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.). The circuit court affirmed, as did the appellate court (55 Ill. App. 3d 667), and we granted leave to appeal (65 Ill. 2d R. 315).

The plaintiff has raised several issues in addition to the apparent issue of whether the dismissal was contrary to the manifest weight of the evidence. He first asserts he was denied a fair and impartial hearing because the board members were not impartial but antagonistic towards him, and because the board’s attorney acted as both prosecutor before and advisor to the board. This argument is a variation of the due process challenge presented in Gilliland v. Board of Education (1977), 67 Ill. 2d 143.

The present dismissal procedure (Ill. Rev. Stat. 1977, ch. 122, par. 24—12) provides for the appointment of an independent hearing officer in teacher dismissal disputes. The procedure in effect at the time of the instant case did not (Ill. Rev. Stat. 1973, ch. 122, par. 24—12). Instead section 24—12, as effective then, gave a local board of education the responsibility for initiating and finalizing teacher dismissals, for cause, and the competence to act as a hearing tribunal if the “charged” teacher wanted a hearing. The role of the board’s attorney as both advisor to the board — for example, on questions of evidence and objections — and allegedly as “prosecutor” is irrelevant. The question is whether the board fulfilled its proper function as established by the legislature. The board’s function has been to hire teachers, assign them, and remove them if necessary. This requires the board to establish charges against teachers it finds incapable or wanting, and, as the statute was in effect then, to hold hearings. The record here indicates that the statutory procedure (111. Rev. Stat. 1973, ch. 122, par. 24—12) was adhered to. The plaintiff’s argument, then, is a constitutional challenge already settled by this court in Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 154-56. We also note, as did the Gilliland decision, that a similar procedure has survived constitutional challenge in Hortonville Joint School District No. 1 v. Hortonville Education Association (1976), 426 U.S. 482, 49 L. Ed. 2d 1, 96 S. Ct. 2308. Accord, Withrow v. Larkin (1975), 421 U.S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (where the Supreme Court stated that the combination of investigative and adjudicative functions in a State licensing agency does not in itself have an unacceptable risk of bias). Cf. Miller v. Board of Education (1964), 51 Ill. App. 2d 20, 38-41.

Does this mean, then, that despite the existence of bias on the part of a decision maker, e.g., here a board member, a petitioner in such a proceeding has no other recourse once a procedure is found constitutionally sufficient? Not at all. Withrow v. Larkin (1975), 421 U.S. 35, 58, 43 L. Ed. 2d 712, 730, 95 S. Ct. 1456, 1470, pointed out that special facts, demonstrating denial of due process, might exist. But without “a showing to the contrary, state administrators ‘are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.’ ” (Withrow v. Larkin (1975), 421 U.S. 35, 55, 43 L. Ed. 2d 712, 728, 95 S. Ct. 1456, 1468.) Moreover, “[m]ere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker. [Citations.] Nor is a decision-maker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not ‘capable of judging a particular controversy on the basis of its own circumstances.’ ” (Hortonville Joint School District No. 1 v. Hortonville Education Association (1976), 426 U.S. 482, 493, 49 L. Ed. 2d 1, 9, 96 S. Ct. 2308, 2314. Accord, Carrao v. Board of Education (1977), 46 Ill. App. 3d 33.) The plaintiff believes overwhelming bias existed on the part of the board. As evidence of this, he cites some instances. The plaintiff had been honorably let go in 1971 because the agriculture program, for which he had been hired, had been discontinued. He successfully sued to be reinstated. In the spring of 1974, the board chairman, James Flanigan, was approached with the question, “What’s this you trying [sic] to get rid of Mr. Grissom again?” To which he admitted he replied, “What do you mean again? We never have stopped.” The plaintiff also noted the following instances: the board sustained all nine of its attorney’s objections while denying or overruling 19 of plaintiff’s 24 motions or objections; one of the board members had reason to be biased because his son had been disciplined by the plaintiff; and Flanigan, in the presence of another board member, expressed the view to a prospective witness (whose testimony was recorded and allowed in on plaintiff’s behalf) that the plaintiff was unreasonable and incompetent as a teacher.

The examples the plaintiff calls to our attention are not persuasive. Flanigan’s remarks were thoughtless and indiscreet, but hardly so substantial as to evidence a vendetta or prejudice violative of the standards of Withrow v. Larkin (1975), 421 U.S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456, Gilliland v. Board of Education (1977), 67 Ill. 2d 143, Fender v. School District No. 25 (1976), 37 Ill. App. 3d 736, Carrao v. Board of Education (1977), 46 Ill. App. 3d 33, and Morelli v. Board of Education (1976), 42 Ill. App. 3d 722. Moreover, they are the only evidence of hostility on the part of the seven-member board. The plaintiff has failed to show that any other member was biased; he must show more than the mere possibility of bias. We are unable to say the board, in the exercise of its duties, displayed unfairness to the plaintiff by favorably acting on only six of his motions or objections. Plaintiff was accompanied by counsel, had the opportunity to cross-examine, and was permitted to offer as evidence tape recordings of testimony taken by his attorney without the presence of the board’s attorney.

The plaintiff next asserts that the charges in the notice of dismissal and bill of particulars were insufficiently specific. The charges listed in the notice of dismissal (March 26, 1974) were:

“1. Inability or failure to discipline students, or maintain classroom discipline, in a proper or appropriate manner.
2. Failure to maintain and protect school property and equipment, under your charge or supervision, from defacement, damage or destruction.
3. Inability or unwillingness to convey proper classroom instruction to students so as to promote their comprehension and retention of the subject matter being taught; and, inability or unwillingness to utilize proper or appropriate instruction or teaching techniques.
4. Failure or refusal to accept and act upon suggestions, advice and directions provided to you by the Superintendent and Principal of the school, particularly in regard to those matters noted in the preceding sub-paragraphs.”

The bill of particulars (April 9, 1974) expanded upon the charges above by repeating them but with additional, specific subparagraphs underneath each charge:

“I ***
a. Use of unnecessary and unwarranted physical force and violence in dealing with or disciplining students.
b. Failure to observe or correct unruly or undisciplined, and often physically unruly, conduct of students under your supervision during classes or otherwise.
jj ***
a. Failure to protect desks, walls and other portions of classrooms and classroom equipment from defacement, damage or disarrangement (such as carving of initials on desks, writing with ink on blackboards, removal of screws from desks and other classroom equipment, etc.) by students or others.
b. Failure to prevent or observe loss or theft of books, parts of projection equipment, and other equipment, from classrooms, by students or others.
c. Permitting students to place and leave trash and debris, such as candy wrappers, “spitwads”, “wads” of gum, etc. in classrooms utilized by you.
jlj ***
a. Failure to answer questions of students, or explain subject matter to students upon request, during instruction, and particularly failure to do so in a clear, concise and professional manner.
b. Use of excessive volume of voice (even to the point of shouting), or unpleasant tones of voice, when attempting to instruct students.
c. Failure to exhibit, demonstrate and provide patience in instruction to students so as to impair their processes of mentation, and discourage or reduce their desire to learn.
jy ***
a. Refusing to accept proper direct orders or requests to teach classes.
b. Refusing or failing to accept and act upon proper suggestions, advice or orders relating to means of disciplining students.
c. Failure to remedy defects or deficiencies in teaching techniques, demeanor or disciplinary techniques although requested to do so orally and in writing by the Principal and Superintendent.”

The plaintiff argues that they were insufficient for failure to specify incidents, dates and names. We disagree. “The charges in administrative proceedings need not be drawn with the same precision required of pleadings in judicial actions but need only be sufficiently clear and specific to allow the preparation of a defense.” (Carrao v. Board of Education (1977), 46 Ill. App. 3d 33, 37.) The essence of sufficient specifications, in other words, is that “it must fairly apprise the teacher of the alleged deficiency *** to enable the teacher to refute the charge.” (Wade v. Granite City Community Unit School District, No. 9 (1966), 71 Ill. App. 2d 34, 36. See Donahoo v. Board of Education (1952), 413 Ill. 422.) We conclude the notice and bill of particulars fairly apprised the plaintiff of the basis of his dismissal.

The plaintiff next argues that the provisions of section 24-12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24—12) were not complied with because the board failed to vote to dismiss him, and to hold its hearing and render a decision before the effective date of dismissal. This is without merit. First, at a special meeting March 25, 1974, the board voted not to rehire the plaintiff. The following day, a letter, entitled “Notice of Dismissal” and bearing the signatures of the board president and the superintendent, was sent to the plaintiff. The minutes of the meeting and the letter are clearly a part of the record. Second, although section 24 — 12 clearly requires the hearing to be held and decision rendered before the date of dismissal, we believe where a party has not only acquiesced without objection in but also has been at least partially responsible for delay, that party may not later invoke the statute and object to jurisdiction. The plaintiff is not candid when he states “the record shows that all of the delay *** was attributable to [the] Defendant” board. The record shows plaintiff’s attorney agreed “that the hearing may proceed past the proposed effective date of dismissal of May 31st, 1974.” The record indicates further the board attempted to accommodate both attorneys’ schedules, and that the plaintiff did not object to delays until August 2, 1974, at which time his attorney stated that the plaintiff felt the continuance until August 16 was too long. There are no explanations for the delay of three months between the date of dismissal and the date of decision on August 28, 1974. But, given plaintiff’s apparent acquiescense, at least up to August 2, we conclude he waived the statutory time limit. The plaintiff cites Cummings v. Daley (1974), 58 Ill. 2d 1, and Szkirpan v. Board of Education (1975), 29 Ill. App. 3d 1047, as controlling, whereas the board cites Miller v. Board of Education (1962), 37 Ill. App. 2d 451, as supportive, leaving one with the impression they clash. These cases are not in conflict as Szkirpan v. Board of Education (1975), 29 Ill. App. 3d 1047, 1051, correctly implies. Rather in Cummings and Szkirpan, the governmental agencies were responsible for the time-tolling delay. In Miller, the court found the record devoid of dilatory conduct by all parties; hence, a party should not be permitted to take advantage of this; otherwise the party would intentionally engage in delay. 37 Ill. App. 2d 451, 454.

Plaintiff also contends the board failed to make findings adequate to sustain its decision to dismiss him, and that it wrongly took its final action in closed session. The three-page, handwritten findings of the board were made during a recess in the last hearing on August 28, 1974, and made known to plaintiff’s counsel upon the board’s return to the “open” hearing. Reading of the findings was waived by plaintiff’s counsel. Upon the findings’ admission into evidence, the members of the board present (one was absent) were asked if they had signed the findings dismissing the plaintiff. Each of the six answered yes. ■

The findings consisted essentially of a restatement of the charges in the notice of dismissal and bill of particulars, quoted above. The second charge, as well as subparagraph (a) of the fourth charge (see the bill of particulars), had been stricken so the findings referred to the first, third and fourth charges. We believe they adequately support the board’s decision and provide a basis for judicial review. The plaintiff maintains Reinhardt v. Board of Education (1975), 61 Ill. 2d 101, requires reversal here, but we do not agree. In that case, the board of education made no findings but simply reached a decision. Reinhardt does not say, as the plaintiff argues in his brief, that the findings must specify what evidence the board accepted and rejected. (Chicago Junction Ry. Co. v. Illinois Commerce Com. (1952), 412 Ill. 579, 583-84.) Rather, this court in Reinhardt said:

“It is clear that a decision by an administrative agency must contain findings to make possible a judicial review of the agency’s decision. The Supreme Court in Securities and Exchange Com. v. Chenery Corp., 318 U.S. 80, 94, 87 L. Ed. 626, 63 S. Ct. 454, described the requirement stating that ‘the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.’ ” (Emphasis added.) (61 Ill. 2d 101, 103.)

The board, in its findings, has clearly set out those grounds. Cf. Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582, 588, where findings justifying impairment of first amendment rights of a government employee were deemed insufficient, and Kozsdiy v. O’Fallon Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 173, 177, where the court found the finding “guilty as charged” insufficient because no written charges existed although that court noted that, had written charges existed, they could have been incorporated by reference.

The plaintiff’s assertion that the board took final action in closed session in violation of section 2 of the Open Meetings Act (Ill. Rev. Stat. 1973, ch. 102, par. 42) must also fail. Section 2 prohibits any final action being taken in closed session. It does not prohibit “holding closed sessions to consider information regarding appointment, employment or dismissal of an employee.” The record reveals only that the board recessed to draw up the signed findings in closed session. Upon returning to open session, each board member publicly indicated his vote on the dismissal by acknowledging his signature on the findings. This is not in violation of the statutes, and is similar to Jewell v. Board of Education (1974), 19 Ill. App. 3d 1091, 1094-95, where the board went into executive session, was polled and found to unanimously agree not to rehire a teacher, entertained a motion to that effect, prepared the motion, and returned to open session where the motion was read. Then each member, by roll call, voted in favor of the motion. The appellate court found this consistent with the statute and so do we.

We reach, then, the issue of whether the decision of the board was against the manifest weight of the evidence. The board found that the causes for the charges were irremediable and justified the plaintiff’s dismissal. Since the causes were irremediable, the board concluded, it was unnecessary to give the plaintiff a reasonable warning. (Ill. Rev. Stat. 1973, ch. 122, par. 24—12.) The specific issue is whether the causes for the charges were irremediable. The following evidence was presented to the board.

Five students testified that the atmosphere of plaintiff’s classes had deteriorated during the fall of 1973. Rowdiness increased. Plaintiff’s classes were conducted poorly: he failed to answer questions, stimulate interest, prepare materials and maintain discipline. He frequently struck or “tapped” students with a yardstick or meter-stick. Some or all of the students testifying mentioned several specific instances of difficulties the plaintiff was involved in, or in which he failed to take appropriate action. According to this evidence, the plaintiff refused to admit mistakes after he was shown to be wrong in his mathematics course; he either allowed or ignored penny rolling in class; he chased, caught and held, in a “choking hold,” a student named Tracy Joyce; he squared off with and slapped Gloria Spearman, a student; and he refused to give John Zalaker, a student who testified, permission to go to the library. (Young Zalaker testified that he then asked plaintiff for permission to go to the principal, and when plaintiff refused to let him go, the youngster went anyway.)

Roger Schoenhardt, a teacher in defendant’s school district, testified that he taught classes in the same room as plaintiff, but immediately before and after, and that the room was clean before but invariably strewn with “wrappers and other debris” after plaintiff’s class. He also said he never had any discipline problems after taking over plaintiff’s mathematics course when the latter was relieved.

David Kuetemeyer, principal of the school during the 1973-74 school year, testified he wrote plaintiff six letters or memoranda regarding the disciplinary and teaching problems plaintiff was having in his classroom. The letters were in response to things Kuetemeyer had actually observed in plaintiff’s classes, such as two students slapping each other, students throwing paper, students engaged in a tug-of-war over a pencil in front of plaintiff while he was talking to another student; in response to the unclean state of plaintiff’s classrooms after his class; and in response to his method of teaching. Kuetemeyer said he gave specific suggestions, regarding noise level, method of instruction, dispensing of discipline, paddling policies, and other matters, to plaintiff, who was receptive to the suggestions. Several letters were required, according to Kuetemeyer, because there was no actual improvement in the conduct of plaintiff’s classes. One of the last letters was in response to Kuetemeyer’s observing plaintiff leaving the study hall while holding Tracy Joyce off the floor and around the neck. Kuetemeyer also testified that plaintiff admitted slapping Gloria Spearman because she “cursed at him” (there is a question as to whether the “cussing” occurred before or after the slap), and that plaintiff was sincere in his efforts and never antagonistic towards Kuetemeyer. Kuetemeyer admitted giving plaintiff a fairly positive evaluation in the fall of 1973. He also said a paddling policy existed in the school district and had been publicized in the school: a student voluntarily bends over and holds his or her ankles and is then paddled.

The superintendent of the Buckley-Loda Community School District, Arthur Carlton, testified he noticed a general decline in the plaintiff’s teaching effectiveness in the middle of October 1973: “little interchange” between the plaintiff and students in his history class, no respect for or attention to the plaintiff in his mathematics class, and much noise in his study hall. Carlton said the plaintiff made an “earnest” effort to improve his teaching and attempted to implement Carlton’s suggestions, but ultimately failed to improve. Although Carlton and the plaintiff had frequent conferences, the superintendent testified that by Christmas 1973 the discipline had deteriorated significantly: lack of attention, rowdiness, book throwing, and students out of their desks. In the spring of 1974, Carlton prepared a “formal report” which, he said, indicated that the plaintiff angered easily, spoke loudly and grammatically poorly, executed his lessons badly, showed no interest in the course subject nor even in the teaching profession, and was unconcerned with basic teaching techniques. Carlton also testified that he saw plaintiff chase, catch and drag, by his neck, John Zalaker back to the study hall. Parents he conferred with, Carlton said, asked that their children be transferred from his classes. Carlton conceded the plaintiff was cooperative and had a reputation for honesty.

On behalf of the plaintiff, four students testified they had him for American history, and that he was interesting and knew his subject, helped and showed an interest in the students, tried different teaching methods and never struck anyone in that class. A fifth student, who had the plaintiff for mathematics, said the plaintiff was a good teacher who never struck but “tapped” students with the meters tick, although the plaintiff slapped Gloria Spearman and chased Tracy Joyce.

William Waterman, father of one of the students who testified for the plaintiff, related that he was the one who asked board member James Flanigan, “What’s this you trying to get rid of Mr. Grissom again?” Flanigan’s reply was, “What do you mean again? We never have stopped.”

The plaintiff himself gave the following testimony. He had been a teacher, prior to the 1973-74 school year, for 14 years, with 10 of those years spent in the defendant’s school district. He had been hired to teach agriculture, and was then given an honorable termination because the agriculture course was terminated. He successfully sued to be reinstated. For the year 1973-74, he was not notified until late August 1973 that he would be teaching. (June 15 is the usual final date of notice to teachers.) He was surprised to learn he would be teaching mathematics. He was on cordial terms with both Carlton and Kuetemeyer.

Plaintiff admitted striking students with the meter-stick, and conceded the occurrence of domino playing, penny rolling and coat throwing in his classes. He denied choking or in any way harming Tracy Joyce, but held Tracy, after chasing and catching him, around his neck and under his shoulder, and then placed him at Kuetemeyer’s feet; he also spanked Tracy twice. Plaintiff claimed the only person he slapped was Gloria Spearman, who had refused to stop tapping the radiator with her foot, and cursed and swung at plaintiff after he moved her foot away from the radiator but before he slapped her. He refused to give permission to John Zalaker to go to the library because he had previously caught the student playing cards there. The plaintiff told him he could see the principal after school, but the youngster went anyway and the plaintiff followed. The plaintiff contended that Eddie Allen’s recall of the plaintiff’s alleged refusal to admit a mistake was inaccurate. Initially, plaintiff did not understand Eddie’s point, but once he did, he referred Eddie to the teacher’s edition of the textbook which contained the correct answer.

Daniel Schneider, also a teacher in the defendant’s school district, testified that he saw the plaintiff taking Tracy, a disciplinary problem, to the office in a manner that was not injurious to Tracy. He also said that, though the plaintiff could be moved to anger, he “got along reasonably well” with others.

Finally, the board allowed into evidence the taped depositions of two teachers. Robin Ledbetter, a teacher since 1949, a colleague of plaintiff, and sometime administrator, stated that the plaintiff was cooperative, got along with and had the respect of other teachers, and was interested in the students. He also said that in his view the charges against the plaintiff, presented to Ledbetter hypothetically, were of a remediable nature.

Robert Derry, also a colleague of the plaintiff, a teacher for 11 years and father of one of plaintiff’s students, found plaintiff cordial and friendly. A conference with the plaintiff, Carlton and Derry and his wife, concerning their daughter’s problems with mathematics, had been beneficial.

In Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 153, this court stated:

“The board’s findings are not, of course, immune from judicial review. The court function, however, is limited, and does not permit substitution of the court’s judgment for that of the board. Rather, the board’s findings must be sustained unless those findings are contrary to the manifest weight of the evidence. [Citations.] The test in determining whether a cause for dismissal is irremediable is whether damage has been done to the students, faculty or school, and whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned her. [Citation.] Uncorrected causes for dismissal which originally were remediable in nature can become irremediable if continued over a long period of time.”

(Accord, Aulwurm v. Board of Education (1977), 67 Ill. 2d 434, 442.) Plaintiff’s contentions are that the charges against him were remediable, and that he was entitled to a warning, which both sides agree was not given.

We agree. The three standing charges of failure or inability to maintain discipline, inability or unwillingness to convey proper classroom instruction, and failure or refusal to act upon suggestions or instructions of the principal or superintendent, as well as the cited specific instances attributed to plaintiff, are all of a remediable nature. The charges are serious and there is evidence to support the charges. But the board has failed to demonstrate that the damage to the students, faculty or school has been of such a severe nature as to justify not giving the required warning (Ill. Rev. Stat. 1973, ch. 122, par. 24—12); and it has failed to show that the conduct resulting in that damage could not have been corrected even if the warning had been given. Had the plaintiff been “given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges” (Ill. Rev. Stat. 1973, ch. 122, par. 24—12), the record here might support the board’s discharge of plaintiff. However, the plaintiff was not given that warning; hence, he was denied the opportunity to confront and correct an apparently serious situation. The evidence discloses the receptivity of the plaintiff to his superiors’ instructions and suggestions. They admit as much. They also concede he cooperated with them in attempting to implement their suggestions. The evidence is conflicting apropos of discipline and effective instruction. Our role is not to resolve conflicting evidence, but rather to determine if the decision reached was contrary to the manifest weight of the evidence. To the extent that the board determined the causes for the charges were irremediable, we find the decision was contrary to the manifest weight of the evidence. Although there are some similarities to the facts of Gilliland, one significant difference stands out. The teacher there had a much longer period to correct her problems. Moreover, the damage there compounded into irremediability over the years. Here the plaintiff’s problems arose only after the academic year had started. His dismissal, without the required warning, after several months is clearly distinguishable from Gilliland.

We conclude the board was without jurisdiction to dismiss the plaintiff because “the giving of notice of remediable causes is jurisdictional and *** the failure *** to give such a warning *** prevents it from acquiring jurisdiction.” (Aulwurm v. Board of Education (1977), 67 Ill. 2d 434, 443.) For these reasons, we reverse the judgments of the appellate and circuit courts.

Judgments reversed.

MR. JUSTICE UNDERWOOD,

dissenting:

In my judgment our opinion in Gilliland v. Board of Education (1977), 67 Ill. 2d 143, is dispositive of this case and requires affirmance of the judgments of the trial and appellate courts, which upheld the action of the board of education in discharging plaintiff. However, if the reasons for his discharge were remediable and failure to give plaintiff prior notice thereof invalidates his discharge, as my colleagues now hold, I do not understand why it is necessary for them to discuss the other issues which are so extensively treated.

The board of education found the conduct of plaintiff resulting in his discharge was not remediable. The trial and appellate courts held that finding was not contrary to the manifest weight of the evidence, and I agree. My colleagues acknowledge “The charges are serious and there is evidence to support the charges” (75 Ill. 2d at 332), but then proceed to hold the failure to warn him denied plaintiff “the opportunity to confront and correct an apparently serious situation” (75 Ill. 2d at 332). In view of the testimony that the principal had, during the 1973-74 school year, written plaintiff six letters or memoranda regarding that situation without noticeable improvement, the finding by my colleagues that the causes for discharge were remediable seems to me completely unrealistic.

It will be quite difficult for school boards to discharge their responsibilities to provide effective educational environments if their findings are to be treated as cavalierly as my coHeagues have treated these.

I would affirm the judgments of the trial and appellate courts.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50845.
    THE CITY OF ROCKFORD et al., Appellants, v. PAUL P. GILL, County Clerk, Appellee.

      Opinion filed March 20, 1979.

      A. Curtis Washburn, Stephen W. McCarty, and Connolly, Oliver, Godard, Caplan & Close, of Rockford (Robert J. Oliver, of counsel), for appellants.
    Daniel D. Doyle, State’s Attorney, of Rockford (William Gates, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, the city of Rockford, filed suit in the circuit court of Winnebago County, seeking a declaration that an ordinance levying taxes for library purposes in excess of the statutory limit was valid under the city’s home rule powers. Defendant Paul P. Gill, the county clerk, had refused to extend the levy provided for by the ordinance on the ground that it exceeded the maximum tax rate for library purposes permitted by section 3 — 1 of the Illinois Local Library Act (Ill. Rev. Stat. 1975, ch. 81, par. 3—1). Consequently, the city also sought to enjoin the county clerk from extending for library purposes an amount of tax less than that provided by the ordinance. The trial court granted the city’s motion for summary judgment, the county clerk appealed, and the appellate court reversed and remanded, holding that despite its home rule power to tax, the city could not exceed the library tax rate fixed by the statute (60 Ill. App. 3d 94). We allowed the city leave to appeal and we now reverse.

At all relevant times section 3 — 1 of the Act provided:

“In any city of 500,000 or fewer inhabitants, the corporate authorities shall levy a tax for library purposes of not to exceed .15% of the value of all the taxable property in the city, as equalized or assessed by the Department of Local Government Affairs.” (Ill. Rev. Stat. 1975, ch. 81, par. 3-1.)

The Rockford Public Library is governed by the Act, which was first adopted in 1965. Despite the statutory limitation of .15%, the library board requested and the city adopted a tax-levy ordinance for library purposes in 1976 in an amount requiring a tax rate of .1604%. The ordinance recited that it was adopted pursuant to the procedures set forth in section 3 — 1 of the Act, but that the tax-rate limitation was inapplicable because the ordinance was enacted pursuant to the city’s taxing power as a home rule municipality under article VII, section 6(a), of our 1970 Constitution. That section provides:

“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.”

In addition to refusing to extend the levy in the amount provided by the ordinance because it exceeded the statutorily mandated rate, the county clerk also contended that the ordinance was void because the city had failed to allow 10 days to elapse between the publication of the appropriation ordinance and the passage of the tax-levy ordinance, as required by section 1—2—4 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 1—2-4). The trial court held that because the statutory limitation on the library-tax levy had been enacted prior to the adoption of the 1970 Constitution, it was superseded by the taxing power that the Constitution granted to home rule units. The court accordingly held the tax-levy ordinance valid, directed defendant to extend the amount levied, and enjoined the extension of any lesser amount.

We agree with the appellate court that the issue here may be stated simply as whether ahorne rule municipality may levy a tax for library purposes in excess of the .15% limit imposed by the statute governing local libraries. In our judgment, however, an affirmative answer is clearly required by the earlier decisions of this court.

In Kanellos v. County of Cook (1972), 53 Ill. 2d 161, this court held that pursuant to its power to incur debt (Ill. Const. 1970, art. VII, sec. 6(a)) a home rule county could issue general obligation bonds without prior referendum approval by county voters, although a pre-1970 statute required such approval. What the court said about home rule powers in Kanellos bears repeating:

“The concept of home rule adopted under the provisions of the 1970 constitution was designed to drasticaHy alter the relationship which previously existed between local and State government. Formerly, the actions of local governmental units were limited to those powers which were expressly authorized, implied or essential in carrying out the legislature’s grant of authority. Under the home-rule provisions of the 1970 constitution, however, the power of the General Assembly to limit the actions of home-rule units has been circumscribed and home-rule units have been constitutionally delegated greater autonomy in the determination of their government and affairs. To accomplish this independence the constitution conferred substantial powers upon home-rule units subject only to those restrictions imposed or authorized therein.” (53 Ill. 2d 161, 166.)

Noting that the concept of home rule was “totally foreign in the contemplation of legislation adopted prior to the 1970 Constitution” (53 Ill. 2d 161, 166-67), the court held that the prior statute was inapplicable to a home rule county. This court subsequently followed the rationale of Kanellos in a series of decisions approving ordinances adopted by home rule units pursuant to section 6(a) of article VII despite the fact that those ordinances conflicted with existing statutes enacted prior to the adoption of the 1970 Constitution. Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523; Paglini v. Police Board (1975), 61 Ill. 2d 233; Peters v. City of Springfield (1974), 57 Ill. 2d 142; Clarke v. Village of Arlington Heights (1974), 57 Ill. 2d 50; People ex rel. Hanrahan v. Beck (1973), 54 Ill. 2d 561.

The appellate court in this case found that the General Assembly intended the library to be “a separate and independent taxing body whose finances and administration will remain apart from the exigencies of municipal politics.” (60 Ill. App. 3d 94, 100.) That finding was predicated upon the statutory provision that monies collected from the library tax shall be deposited in a special fund under the control of the board of library directors and that the municipal authorities are to levy library taxes in the amounts determined by the board. That court also noted that the statute was amended effective July 1, 1978 (Pub. Acts 80—1152 and 80—1153, Ill. Rev. Stat., 1977 Supp., ch. 81, par. 3—1), to retain the tax rate óf .15% but to provide, subject to a referendum if requested, for an additional tax rate of .02% for sites, buildings, building maintenance equipment, and repairs. The appellate court reasoned: “Inasmuch as this provision would not be appropriate or necessary if the legislature considered the city to have taxing power over and beyond the statute, under its home rule powers, we deduce that such unlimited taxing power for library purposes was not intended to be given under the home rule powers.” 60 Ill. App. 3d 94, 100.

In focusing on this question, however, the appellate court misconceived the proper nature of the present inquiry. It is manifestly impossible to find a legislative intention to limit the city’s home rule powers of taxation in a statute that pre-dates the 1970 Constitution because, as this court said in Kanellos, the concept of home rule was “totally foreign” to pre-1970 legislative contemplation. (53 Ill. 2d 161, 166-67.) Nor does the 1978 amendment, even had it been adopted in time to apply to the years in question here, support a different conclusion, for we have repeatedly held that a statute enacted after the adoption of the 1970 Constitution can restrict home rule taxing powers only if it is approved by a three-fifths majority of both houses (Ill. Const. 1970, art. VII, sec. 6(g)) and specifically expresses a restrictive purpose. (Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 528; Mulligan v. Dunne (1975), 61 Ill. 2d 544, 550; Rozner v. Korshak (1973), 55 Ill. 2d 430, 435.) There is no contention that the amendment in question here meets these tests. Additionally, of course, section 6(h) of article VII authorizes the legislature to “provide specifically by law for the exclusive exercise by the State” of most home rule powers. (Ill. Const. 1970, art. VII, sec. 6(h).) This does not mean that enactment of the amendment was a “futile gesture,” as the appellate court suggested (60 Ill. App. 3d 94, 100). The additional tax rate gives added flexibility to non-home-rule units, which draw their power to tax for library purposes from the statute; it is simply inapplicable to home rule units.

Finally, we consider the second major contention raised by defendant in the trial court, which the appellate court did not reach in view of its disposition of the case. Defendant asserts that the city’s library tax levy for 1976, as well as the levy for 1977, was illegal and void for failure to comply with the time periods for publication of ordinances prescribed by section 1—2—4 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 1—2—4), in that the city failed to publish the appropriation ordinance 10 days before passing the levy ordinance. (People ex rel. Franklin v. Wabash R.R. Co. (1944), 387 Ill. 450; People ex rel. Larson v. Thompson (1941), 377 Ill. 104.) We agree with the city, however, that defendant has no standing to raise this issue.

Defendant clearly has standing to raise the issue of whether the levy exceeded the amount authorized by law, because a county clerk has a statutory duty to disregard any amount certified for extension that exceeds the maximum allowed by law (Ill. Rev. Stat. 1975, ch. 120, par. 643). No statute, however, authorizes a county clerk to determine whether a levy is illegal and void in toto. Moreover, the statute requiring publication of the appropriation ordinance was designed for the protection of taxpayers. (People ex rel. Sullivan v. Florville (1903), 207 Ill. 79.) Defendant has cited no decision, and we have found none, in which a court has allowed the county clerk, rather than a taxpayer, to challenge the legality of a taxing ordinance on this ground. On the contrary, this court has long held that a county clerk has no power to levy taxes or determine whether taxes have been legally assessed. His duties in the extension of taxes are purely ministerial. (People ex rel. Chamberlain v. Chicago, Burlington & Quincy R.R. Co. (1943), 383 Ill. 212, 216; People ex rel. Smith v. National Plate Glass Co. (1931), 344 Ill. 340, 345; People ex rel. Carr v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. (1925), 316 Ill. 410, 414. See also People ex rel. Carter v. Touchette (1955), 5 Ill. 2d 303, 306.) We hold that this statement of the law is dispositive of the issue before us. The clerk’s duties in respect of the extension of taxes being purely ministerial, he may not refuse to extend a levy in an amount authorized by law on the ground that the levy is void for failure to comply with statutorily prescribed procedures.

Accordingly, the judgment of the appellate court is reversed; the judgment of the circuit court, upholding the validity of the levy and enjoining the county clerk from extending a lesser amount, is affirmed.

Appellate court reversed; circuit court affirmed.


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

text:
    (No. 50590.
    COMMERCIAL NATIONAL BANK OF PEORIA, Adm’r, Appellant, v. IOLANDA B. BRUNO et al., Appellees.

      Opinion filed April 18, 1979.

      MORAN and UNDERWOOD, JJ., concurring in part and dissenting in part.
    Julian E. Cannell and Phillip B. Lenzini, of Peoria (Kavanagh, Scully, Sudow, White & Frederick, of counsel), for appellant.
    Vincent J. Pascucci, of Chicago (Griffin, Fiedler & Pascucci, Ltd., of counsel), for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondents, Iolanda B. Bruno and Santo Di Pietro Bilotti, appealed from the judgments of the circuit court of Peoria County entered in favor of petitioner, Commercial National Bank of Peoria (hereafter bank), against each of said respondents in the amount of $15,307.25 and costs. The appellate court reversed (56 Ill. App. 3d 552), and we allowed the bank’s petition for leave to appeal.

Sam Bilotti, also known as Sam Belotto, died intestate on April 9, 1975. The attorney for the bank, which had acted as Bilotti’s conservator during his lifetime, met with respondents, who were the niece and nephew of the decedent. They gave the attorney the names of five nieces and nephews of the decedent whom respondents had not seen in more than 20 years, but who were believed to be residing in France or Australia. Respondents were unable to provide addresses for any of the other nieces or nephews.

The bank filed a petition for letters of administration, and notice of the hearing was published in a local newspaper. The bank was appointed administrator and filed an affidavit of heirship listing the respondents as heirs, and naming the five unlocated nieces and nephews, but stated that it was not known whether they were living and that there might be unknown heirs “some of whom may be minors.” Upon completing the administration the bank filed a final report and account showing distribution of $23,140 to each respondent, and on March 9, 1976, an order was entered discharging the bank and closing the estate.

On December 15, 1976, an attorney in fact for the five nieces and nephews of whom the bank’s attorney had been advised, and an additional nephew, filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72) praying that the order discharging the administrator be vacated and “the estate herein be reopened for the purpose of pursuing the administrator for the statutory shares due the heirs represented by your petitioner as attorney in fact.” The attorney in fact also filed a petition for citation asking that an order be issued against the bank directing it to appear in open court “and give testimony as to the whereabouts of all funds due and owing the heirs represented by your petitioner” and that the bank “be directed and commanded to produce in open court all funds due and owing the heirs represented by your petitioner.”

Following the filing of the petition and citation, the bank filed a petition for an order for partial refunding of distribution asking that each respondent be required to refund the sum of $15,426.68 “plus a reasonable amount to cover further costs.” It also filed a petition to amend the order of heirship.

The circuit court denied the petition filed pursuant to section 7 2 of the Civil Practice Act. On its own motion it ordered that the order of discharge entered on March 9, 1976, be vacated, that the estate be reopened, and that the bank be reinstated as administrator. The order stated that the court’s actions were taken pursuant to the provisions of section 24 — 9 of the Probate Act of 1975 (Ill. Rev. Stat. 1975, ch. 3, par. 24—9). The hearing on the citation filed on behalf of the foreign heirs was continued to a date certain, and although a docket entry shows it was later taken under advisement, no subsequent order was entered.

Under the amended order of heirship approved by aU counsel, respondents would be entitled to inherit one-third of the decedent’s estate. Following the taking of testimony and consideration of briefs, the circuit court entered judgment in favor of the administrator and against each of the respondents in a sum which equalled two-thirds of the amounts received in the original distribution.

Section 24 — 9 of the Probate Act of 1975 in pertinent part provided:

“If a decedent’s estate has been closed and the representative discharged, it may be reopened to permit the administration of a newly discovered asset or of an unsettled portion of the estate on the petition of any interested person. If the petition asks the appointment of the former representative or a successor designated by the will, the court may order such notice of the hearing on the petition to be given to any interested persons as it directs or the court may hear the petition without notice.” (Ill. Rev. Stat. 1975, ch. 3, par. 24—9.)

In reversing the judgments the appellate court held that in order to invoke the provisions of section 24 — 9, it was necessary that there be either newly discovered assets or an unsettled portion of the estate, and absent the showing that there was either, the circuit court erred in reopening the estate.

The bank contends that since all parties have admitted that respondents were overpaid by mistake, and that this fact was clearly set out in the petition filed by the six heirs who did not receive their distributive shares, the appellate court erred in reversing the circuit court’s order reopening the estate. In discussing this same contention the appellate court said:

“The petitioner bank in its brief asserts that the trial court arrived at the correct result in ordering that the estate be reopened even though the reasoning used by the trial court in relying on section 24 — 9 of the Probate Act of 1975 was erroneous. It is interesting to note that the record discloses that the section 72 petition filed in the trial court by the alleged nieces and nephews was directed against the petitioner bank in that the prayer of the petition requested that the estate be reopened for the purpose of pursuing the administrator for the statutory shares due the heirs and that further the administrator be assessed with all costs and reasonable attorney’s fees for prosecuting the cause. Coupled with the filing of the section 72 petition was the filing of a petition praying for citation proceedings to issue against the petitioner bank. At the hearing on these petitions counsel for the petitioner bank contested the allegations contained in them and the relief requested, yet in this appeal now contends that a section 72 petition was the correct and proper way to vacate the order closing the estate. Once the trial court ordered the estate reopened and further directed that the respondents make a partial refund of thé distribution received by them, the section 72 petition became more palatable.” (56 Ill. App. 3d 552, 556.)

We agree with the appellate court’s appraisal of the argument and also agree that under its explicit provisions section 24 — 9 may be invoked only to administer “a newly discovered asset or of an unsettled portion of the estate.” Here there were no newly discovered assets and the estate was settled in its entirety and the administrator discharged.

Although we have held that the circuit court erroneously invoked section 24 — 9 to reopen the estate, we will consider the controverted issues on their merits. The parties have urged that we disregard the procedural defects, if any, and determine the controversy on its merits and we have before us a record sufficient to enable us to do so. The bank contends that respondents can be ordered to refund to the adminstrator the distributions to which they were not entitled, that the circuit court had the authority to reopen the probate proceeding and hear the petition for restitution, that the administrator was not guilty of negligence or dereliction of duty, and that the judgment of the circuit court is supported by the record. Respondents contend that the administrator, who with knowledge of all the facts made the distribution by reason of a mistake of law, cannot seek a refund where the distributees were guilty of no fraud, undue influence or coercion. They argue too that the administrator was guilty of negligence and dereliction of duty and therefore cannot recover from the respondents any funds distributed, even though they may have been wrongfully received. Finally, they contend that the findings of the circuit court are contrary to the manifest weight of the evidence. The parties have cited numerous authorities (Cleaveland v. Draper (1907), 194 Mass. 118, 80 N.E. 227; Scott v. Ford (1904), 45 Ore. 531, 78 P. 742; Restatement of Restitution sec. 19 (1937); Restatement of Restitution sec. 126(1), Comment c, at 516 (1937); Harding v. Hewes (1935), 87 N.H. 488, 179 A. 343; Nashville & American Trust Co. v. Baxter (1937), 171 Tenn. 494, 105 S.W.2d 108; Shriver v. Garrison (1887), 30 W. Va. 456, 4 S.E. 660; Hughes v. Pealer (1890), 80 Mich. 540, 45 N.W. 589; Magee v. Keegan (1858), 35 Miss. 244; Smith v. Muse (1925), 138 Miss. 518, 103 So. 356; Gwynn v. Hamilton (1856), 29 Ala. 233; 70 C.J.S. Payment sec. 156 (1951); Annot., 147 A.L.R. 121, 123 (1943)), but in our opinion there is little to be gained from attempting to reconcile or distinguish them. Although some older authorities have attempted to draw a distinction between a mistake of law and ignorance of the law, and in at least one instance the right to restitution was limited because of changed circumstances (see Moritz v. Horstman (1943), 305 Mich. 627, 9 N.W.2d 868), in most cases in which the precise question has been considered, it has been held that when an administrator, with knowledge of all the facts, voluntarily distributed portions of the estate to legatees or heirs in excess of the amounts to which they were entitled, the administrator cannot recover the amounts thus erroneously paid. See Annot., 147 A.L.R. 121, 122 (1943).

The record in this case leads inexorably to the conclusion that the distribution to respondents was made as a mistake of law. The trust officer for the bank, and its attorney, were advised concerning the identity of the other heirs, and except for the publication in a local newspaper, appear to have made no effort whatsoever to ascertain whether or where they were living. The only conclusion which can be drawn from the record is that the distribution was made on the theory that if the other heirs failed to appear within the period of administration, respondents were entitled to distribution of the decedent’s residual estate. The long-established rule in this jurisdiction is that in the absence of fraud, misrepresentation or mistake of fact, money voluntarily paid under a claim of right to the payment with full knowledge of all the facts by the person making the payment cannot be recovered unless the payment was made under circumstances amounting to compulsion. (Groves v. Farmers State Bank (1937), 368 Ill. 35, 47.) We perceive of no reason why the rule should not be applicable here, and we hold that the bank is not entitled to recover any part of the sums paid respondents.

Section 24 — 2 of the Probate Act of 1975 provides:

“Notice of the hearing on any account of a representative of a decedent’s estate shall be given as the court directs to unpaid creditors and to every person entitled to a share of the estate who has not received that share in full. If the account is approved by the court upon the hearing, in the absence of fraud, accident or mistake, the account as approved is binding upon all persons to whom the notice was given. No notice need be given to any person from whom a receipt in full is exhibited to the court or who waives notice.” (Ill. Rev. Stat. 1975, ch. 3, par. 24—2.)

The order approving the bank’s report of distribution was not res judicata as to the foreign heirs who received no notice (Hedlund v. Miner (1946), 395 Ill. 217), and the circuit court was empowered to set aside an order entered by reason of fraud, accident or mistake (Heppe v. Szczepanski (1904), 209 Ill. 88; Strauss v. Phillips (1901), 189 Ill. 9; Marshall v. Coleman (1900), 187 Ill. 556; Millard v. Harris (1887), 119 Ill. 185).

Although no appeal was taken from the denial of the petition filed under section 72, the petition for citation filed by the foreign heirs which apparently remains pending and undetermined before the circuit court adequately presents their claims.

For the reasons herein set forth, the judgment of the appellate court is affirmed and the cause is remanded to the circuit court of Peoria County for further proceedings on the petition for citation.

Affirmed and remanded.

MR. JUSTICE MORAN,

concurring in part and dissenting in part:

The relief sought by the five nieces and nephews of the decedent in their section 72 petition was denied by the trial court. Because the correctness .of the denial was not appealed, that decision has become final, and the trial court is without jurisdiction, on remand, to afford a remedy under that petition.

The action which remained — that taken, sua sponte, by the trial court under section 24 — 9 of the Probate Act — has been eliminated by the majority’s opinion. Consequently, there is no cause of action, either under section 72 or under section 24 — 9, pending before the trial court. The majority has, nevertheless, remanded the cause to the trial court for further proceedings on the petition for citation.

A petition for citation is an ancillary process, much like a subpoena, founded upon a pending legal proceeding before the court. It is not an original action and cannot, therefore, invoke the trial court’s jurisdiction.

I would affirm the appellate court’s reversal, without remand, and thereby leave the parties to pursue other separate remedies that might be available to them.

MR. JUSTICE UNDERWOOD joins in this partial concurrence and partial dissent.


author: MR. JUSTICE MORAN

text:
    (No. 50124.
    FRANK HUDGENS et al., Appellants, v. ANTHONY T. DEAN, Appellee.

      Opinion filed January 26, 1979.

    Harris & Lambert, of Marion, for appellants.

      William J. Scott, Attorney General, of Springfield (Robert G. Epsteen, Assistant Attorney General, of Chicago, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This is an action for a mandatory injunction to compel defendant, who at the time of trial was Director of the Department of Conservation (Department), to rebuild and reopen the portion of a road which is located in the village of Goreville (village) and runs through Feme Clyffe State Park (park). In the alternative, plaintiffs seek $65,000 with which to rebuild the road. The circuit court of Johnson County rendered judgment for plaintiffs and issued the requested mandatory injunction. The appellate court reversed (53 Ill. App. 3d 126), and we granted plaintiffs leave to appeal.

The State of Illinois obtained title by warranty deed in 1949 to the land which is now part of the park and over which runs Feme Clyffe Road (the portion of Feme Clyffe Road in question hereinafter referred to as the “road”). Protection and preservation of that land became the responsibility of the Department. Although the evidence fails to disclose that the village has ever had any recorded interest in the road, the evidence does disclose that the road is located entirely within the village limits. In 1965 the State acquired additional adjoining property and built a new entrance road to the park. Thereafter, a lengthy departmental task force study of the road was made. This study recommended that the defendant, as Director of the Department, order the road closed. In 1973, defendant ordered the road closed to vehicular traffic. The road was subsequently torn up and barricaded, after which the viüage and members of the village board brought this action against defendant individually, and not in his capacity as Director of the Department. Following a bench trial, the circuit court found that prior to the State’s acquiring title, (1) the road had been established as a public highway by prescription; (2) the road became part of the village street system; and (3) there was an implied dedication of the road to public use and an implied public acceptance. The court further found that there has never been an abandonment of the road by the public. Based upon these findings, the court ruled that defendant’s actions invaded the plaintiffs’ rights, doing irreparable damage. It found defendant’s actions were taken under “an assumption of authority which he did not have,” and were therefore illegal. The court further ruled that defendant’s acts were neither acts of the State nor acts of the Director, but acts of the defendant individually. The court then issued a mandatory injunction, ordering defendant and “his agents, servants and employees ” to remove the barricades and rebuild the road. The appellate court reversed, dissolving the order and dismissing the cause, on the ground that the action was in reality one against the State and was therefore barred by the doctrine of sovereign immunity.

Section 4 of article XIII of the 1970 Constitution, effective July 1, 1971, provides:

“Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

The General Assembly subsequently enacted Public Act 77 — 1776, effective January 1, 1972, which provides:

“Except as provided in ‘An Act to create the Court of Claims, ***’ *** the State of Illinois shall not be made a defendant or party in any court.” Ill. Rev. Stat. 1977, ch. 127, par. 801.

It is well settled that in determining whether a suit is in fact a suit against the State, the court is not bound solely by the formal identification of the parties to the record. Rather, the court is to analyze the particular issues involved and the relief sought. E. H. Swenson & Son, Inc. v. Lorenz (1967), 36 Ill. 2d 382, 385; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37; Monroe v. Collins (1946), 393 Ill. 553, 558; Posinski v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1941), 376 Ill. 346, 351; Adams v. Nudelman (1940), 375 Ill. 217, 219; Schwing v. Miles (1937), 367 Ill. 436, 442.

As evidenced by their complaint, plaintiffs’ suit purports to be solely against defendant as an individual. The complaint reads:

“This suit, therefore, is not brought against the State of Illinois, nor against Anthony T. Dean as Director of the Department of Conservation nor the Department of Conservation, but is brought solely against the defendant individually ***.”

Such purport, however, is belied by the evidence and proceedings in the case. The evidence reveals that the decision to close the road was made while defendant was Director of the Department, and pursuant to a comprehensive management plan based upon an extensive study of and report on the park site. Clearly, defendant’s decision to close the road was made in his official capacity.

Plaintiffs attempt to reconcile the circuit court’s order, which ran not only against defendant, but also against “his agents, servants and employees,” with their insistence that this is a suit against defendant individually. They argue that the defendant “may well have ‘agents, servants and employees’ of his own that are not State associated ***.” We, however, agree with the appellate court’s conclusion that the circuit court was referring to State agents, servants and employees.

Furthermore, the circuit court and the plaintiffs, in describing defendant’s actions, employed language such as “assumption of authority which he did not have,” “beyond his authority,” and “transcended his authority.” Language such as this is normally associated with cases in which an officer is sued in his official capacity for acting without authority or in excess of his delegated authority. See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548; Owens v. Green (1948), 400 Ill. 380, 409; People ex rel. Freeman v. Department of Public Welfare (1938), 368 Ill. 505, 507;Joos v. Illinois National Guard (1912), 257 Ill. 138, 142.

Finally, plaintiffs have filed a motion in this court to amend their complaint to add David Kenney, the present Director of the Department, as a party defendant. The motion requests that the mandatory injunction issued by the trial court also be made applicable to Kenney as Director. This motion is entirely inconsistent with the nature of plaintiffs’ action as disclosed by the original complaint, and is therefore denied.

It is to be emphasized that, while plaintiffs initially sued defendant as an individual, they subsequently have sought to transform their action into one against defendant in his official capacity, and to have the State answer for defendant’s actions. Plaintiffs cannot have it both ways. The relief requested would require affirmative action by the State and the spending of State funds to rebuild and reopen the road. When the State will be directly and adversely affected by the judgment or decree, making the State the real party against whom relief is sought, the suit is against the State. (Posinski v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1941), 376 Ill. 346, 351-52; Schwing v. Miles (1937), 367 Ill. 436, 442.) In sum, we are of the opinion that this action is, in substance and effect, a suit against the State, and that it is thus barred by sovereign immunity.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE WARD MR. JUSTICE CLARK,

text:
    (No. 50291.
    HARVEY FIREMEN’S ASSOCIATION et al., Appellees, v. THE CITY OF HARVEY et al., Appellants.

      Opinion filed January 26, 1979.

      CLARK, J., dissenting.

      Edward T. Havey, of Chicago, for appellants.
    Lavelle, Levinson, Wanninger & Lambert, of Chicago, for appellees.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiffs, the Harvey Firemen’s Association, Local 471 of the International Association of Firefighters-, and several employees of the fire department of the city of Harvey brought suit against the city of Harvey, its civil service commission, and certain city officials and commission members seeking, inter alia, a declaratory judgment that the rule of the Harvey civil service commission requiring residency within the city of classified city employees is invalid. The trial court held the rule was within the authority of the commission and valid, but the appellate court reversed (54 Ill. App. 3d 21) on an interlocutory appeal (58 Ill. 2d R. 308). We granted the defendants’ petition for leave to appeal (58 Ill. 2d R. 315). The question as framed on the interlocutory appeal was:

“Whether the Civil Service Commission for the City of Harvey, Illinois, has the power, express or implied, to adopt a rule requiring civil service employees of the City of Harvey, Illinois, to reside within its corporate limits as a condition of continued employment?”

The plaintiffs do not dispute the constitutionality, in general, of residency requirements for civil servants (see McCarthy v. Philadelphia Civil Service Com. (1976), 424 U.S. 645, 47 L. Ed. 2d 366, 96 S. Ct. 1154); nor do they deny the authority of the city of Harvey to enact such an ordinance. Their contention is that there is no grant of authority, express or implied, in the commission’s enabling statute, article 10, division 1 (“Civil Service in Cities”) of the Illinois Municipal Code (see Ill. Rev. Stat. 1975, ch. 24, par. 10—1—1 et seq.) that permits the commission itself to require residency of employees in the city of Harvey.

Harvey’s civil service system was adopted November 3, 1942, by a citizen referendum pursuant to section 38 of “An Act to regulate the civil service of cities” (Ill. Rev. Stat. 1941, ch. 24½, par. 76). (The same provision in amended form is now contained within section 10—1—43 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10-1-13).) A city enabling ordinance, enacted on January 18, 1943, transferred to the jurisdiction of the newly authorized commission “all offices and places of employment of the City,” except for certain positions not relevant here. On January 22, 1944, the Harvey commission adopted “Rules of the Civil Service Commission of the City of Harvey, Illinois,” Rule VI, section 4 of which states:

“Removal from City. Removal from the City of Harvey shall be cause for the discharge of any person in the Classified Service; excepting, however, such cases as come within Section 3 of Rule III.” (The exceptions are not concerned here.)

There have been holdings in other jurisdictions which have upheld various types of public employees continuing residency requirements, some of which are cited by the defendants supporting their contention. Those decisions, however, turned on the constitutionality of the involved statute, charter, ordinance or rule and did not involve the specific question here of authority to promulgate such a rule. See, for example, McCarthy v. Philadelphia Civil Service Com. (1976), 424 U.S. 645, 47 L. Ed. 2d 366, 96 S. Ct. 1154; Wardwell v. Board of Education (6th Cir. 1976), 529 F.2d 625; Miller v. Krawczyk (E.D. Wis. 1976), 414 F. Supp. 998; Krzewinski v. Kugler (D.N.J. 1972), 338 F. Supp. 492; Park v. Lansing Board of Education (1975), 62 Mich. App. 397, 233 N.W.2d 592; Williams v. Civil Service Com. (1970), 383 Mich. 507, 176 N.W.2d 593. Also see generally Hayford & Durkee, Residency Requirements in Local Government Employment: The Impact of the Public Employer’s Duty to Bargain, 29 Labor L.J. 343 (1978); Comment, The Constitutionality of Residency Requirements for Municipal Employees, 24 Emory L.J. 447 (1975); Comment, Municipal Police Residency Restriction: Remnant of Feudalism or Sound Public Policy?, 18 St. Louis U.L.J. 214 (1973); Comment, Residency Requirements for Municipal Employees: Denial Of A Right to Commute?, 7 U.S.F.L. Rev. 508 (1973).

In Manion v. Kreml (1970), 131 Ill. App. 2d 374, the court held that the authority to require residency of Chicago police officers within the city was within the statutory power given the police board of the city of Chicago (Ill. Rev. Stat. 1967, ch. 24, par. 3—7—3.1). The court did not consider whether the civil service commission of the city of Chicago had authority to impose such a requirement.

The plaintiffs correctly point out that the commission, being of statutory origin, must find its authority to promulgate a continuing residency rule within its enabling act. “The city civil service commission exercises a limited or statutory jurisdiction, no presumption of jurisdiction obtains in its favor, and it must find in the statute its warrant for any authority claimed.” (People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 343.) The commission’s response is that its authority is derived from the predecessors of the following sections of article 10, division 1, of the Illinois Municipal Code:

“The commission shall make rules to carry out the purposes of this Division 1, and for examinations, appointments and removals in accordance with its provisions, and the commission may, from time to time, make par. 10—1—5, formerly Ill. Rev. Stat. 1943, ch. 2414, par. 42.)
“All applicants for. offices or places in the classified service, except those mentioned in Section 10—1—17 are subject to examination, which shall be public, competitive, and open to all citizens of the United States, with specified limitations as to Tesidence, age, health, habits and moral character. ***” (Ill. Rev. Stat. 1975, ch. 24, par. 10—1-7, formerly Ill. Rev. Stat. 1943, ch. 24½, par. 44.)
“Except as hereinafter provided in this section, no officer or employee in the classified civil service of any municipality who is appointed under the rules and after examination, may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. ***” (Ill. Rev. Stat. 1975, ch. 24, par. 10—1—18, formerly Ill. Rev. Stat. 1943, ch. 24½, par. 51.)

As the appellate court observed, the interpretation and construction of these provisions is governed by the rule that the intention of the legislature should be ascertained and given effect. This court has stated: “The legislative intent should be sought primarily from the language used in the statute. Where the language of the act is certain and unambiguous the only legitimate function of the courts is to enforce the law as enacted by the legislature. [Citations.] It is never proper for a court to depart from plain language by reading into a statute exceptions, limitations or conditions which conflict with the clearly expressed legislative intent. [Citations.] ” Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84.

Section 10—1—5, cited above, shows a legislative intent that municipal civil service commissions were to have the power to make rules for removals, as the statute puts it, of employees in accordance with the provisions of division 1. (Ill. Rev. Stat. 1975, ch. 24, par. 10—1—5.) Section 10—1—7 expressly calls for the providing of limitations as to residence, and other factors, upon those who would take competitive examinations for appointment in the classified service. (Ill. Rev. Stat. 1975, ch. 24, par. 10—1—7.) Section 10—1—18 provides against the removal of a classified officer or employee who is appointed under the rules and after examination “except for cause upon written charges and after an opportunity to be heard in his own defense.” Ill. Rev. Stat. 1975, ch. 24, par. 10-1-18.

We consider that the commission has the authority to regard an employee’s moving his residence from the city of Harvey as “cause” for discharge. In Kammann v. City of Chicago (1906), 222 Ill. 63, 65-66, this court in construing a predecessor to section 10—1-18, stated: “The statute is silent as to what constitutes ‘cause.’ Manifestly the right to determine that question is left with the civil service commission ***. Joyce v. City of Chicago, 216 Ill. 466.” The position that the determination of “cause” is for the commission has been repeatedly recognized. (Klafter v. State Board of Examiners (1913), 259 Ill. 15, 21; Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360; Senese v. Civil Service Com. (1967), 88 Ill. App. 2d 172, 175; Sudduth v. Board of Fire & Police Commissioners (1964), 48 Ill. App. 2d 194, 213; Bruno v. Civil Service Com. (1962), 38 Ill. App. 2d 100, 108-09; Drury v. Hurley (1949), 339 Ill. App. 33, 39, 41.) Of course, the commission must act in a manner not arbitrary or unreasonable in determining what constitutes “cause.” Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360; Sudduth v. Board of Fire & Police Commissioners (1964), 48 Ill. App. 2d 194, 213; Bruno v. Civil Service Com. (1962), 38 Ill. App. 2d 100, 109; Drury v. Hurley (1949), 339 Ill. App. 33, 42. See Kreiser v. Police Board (1977), 69 Ill. 2d 27, 30-31.

The legislature has made it clear that residence, as well as age, health, habits and moral character, may be an employment qualification of applicants for civil service employment. We cannot say that the commission, in promulgating its rule that “Removal from the City of Harvey shall be cause for the discharge of any person in the classified service ***” (Rules of the Civil Service Commission of the City of Harvey, Illinois, Rule VI, sec. 4), acted unreasonably or arbitrarily.

For the reasons given, the judgment of the appellate court is reversed, the judgment of the circuit court of Cook County is affirmed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

Appellate court reversed; circuit court affirmed; cause remanded.

MR. JUSTICE CLARK,

dissenting:

I do not believe the Civil Service Commission of the city of Harvey has the statutory authority to require residency of its classified service employees. I therefore dissent, and do so for the reasons stated in the appellate court decision. 54 Ill. App. 3d 21, 23-24.

Like the plaintiffs, I do not dispute the constitutionality of a residency requirement for civil servants. Nor do I dispute the prerogative of Harvey to enact such a requirement. There are sound policy reasons for it. My disagreement with the majority is that there has been an improper delegation of this responsibility to a statutory creature with a very limited competence. There is no presumption in favor of its regulations. A municipal civil service commission “must find in the statute its warrant for any authority claimed.” People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 343. Accord, Boner v. Drazek (1973), 55 Ill. 2d 279, 288. See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 551.

I see nothing in the Commission’s enabling statute (Ill. Rev. Stat. 1975, ch. 24, par. 10—1—1 et seq.) which might reasonably provide the Commission with the authority to promulgate the residency requirement. The majority, by reading together sections 10—1—5, 10—1—7 and 10—1—18 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 1—1—1 et seq.), concludes the Commission had specific authority to provide for a residency requirement. Section 10—1—5 authorizes the Commission to make rules for examinations, appointments and removals. Section 10—1—7 permits “specified limitations as to residence” for “applicants for offices or places in the classified service” (emphasis added). Section 10—1—18 provides that “no officer or employee in the classified civil service of any municipality who is appointed under the rules and after examination, may be removed or discharged *** except for cause ***.” There is nothing else the majority points to in article 10, division 1 (Ill. Rev. Stat. 1975, ch. 24, pars. 10—1—1 to 10—1—48) to support its position.

Section 10—1—7’s reference to residency limitation is quite clearly a reference to applicants only and not to persons in classified service. As the appellate court pointed out, controverting the majority’s reasoning “is the provision in section 10—1—18 of the Code that a person in classified service may be removed only for cause shown, and the further provisions in that section relating to mandatory retirement of firemen and policemen upon reaching an age prescribed by statute or municipal ordinance, in which situation the commission’s role is simply to oversee the retirement or discharge of that person. Since the legislature granted to the civil service commissions authority to deal with the question of the age of applicants for classified positions, but withheld such authority with regard to removal, it cannot be reasonably inferred that the grant of authority to the commissions to deal with the question of residency of applicants for such positions constituted also a grant of authority to prescribe residency requirements as a condition of continued classified service. No presumption of jurisdiction obtains in favor of a civil service commission (People ex rel. Hurley v. Graber), and no reasonable inference may be made from the pertinent portions of the Illinois Municipal Code upon which to predicate a conclusion that the legislature intended civil service commissions to adopt rules and regulations relating to residency as a cause for removal from classified service.” (54 Ill. App. 3d 21, 24.) For these reasons, I believe the appellate court decision should have been affirmed.