author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 53494.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN MYLES, Appellee.

      Opinion filed September 30, 1981.

      Tyrone Fahner and William J. Scott, Attorneys General, of Springfield, and Richard M. Daley and Bernard Carey, State’s Attorneys, of Chicago (Melbourne A. Noel, Jr., Mark L. Rotert and Donald B. Mackay, Assistant Attorneys General, and Marcia B. Orr, Joan S. Cherry and Michael K. Demetrio, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and Susan Bandes, Assistant Appellate Defender, of Chicago, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Cook County, defendant, John Myles, was found guilty of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18 — 2), and sentenced to the penitentiary for a term of not less than 35 nor more than 60 years. The appellate court reversed and remanded (83 Ill. App. 3d 843), and we allowed the People’s petition for leave to appeal. The facts are adequately stated in the appellate court opinion and will be repeated here only to the extent necessary to discuss the issues.

On June 14,1974, defendant was charged by indictment with armed robbery committed on January 30, 1974. He was arraigned on July 5, 1974. At the arraignment the law firm of Smith, Reilly, Bell and Weinberg, by Mr. Tyce Smith, filed an appearance as defendant’s attorneys. Thereafter, several preliminary motions were presented in defendant’s behalf and the case was continued a number of times. Throughout the proceedings James Reilly appeared for defendant. On March 8, 1976, Mr. Reilly advised the court that defendant no longer desired his services and requested permission to withdraw. Defendant confirmed this, saying he thought Reilly had not protected his rights. The trial court denied Reilly’s request to withdraw and stated that he would not permit Mr. Reilly to withdraw until another attorney appeared for defendant. The court continued the cause pending defendant’s efforts to secure an attorney. On March 17, 1976, defendant stated that he had spoken with attorney E. Duke McNeil and thought that he would take his case. The court instructed defendant that Mr. McNeil should appear the following morning. On March 18, 1976, the State’s Attorney said he had spoken to McNeil, who stated he did not intend to file an appearance. Defendant said that he was attempting to raise money to pay McNeil’s fee and the court continued the matter again. On March 29, 1976, Reilly again moved for leave to withdraw, noting that defendant had refused to cooperate in the preparation of a defense. Defendant stated that he did not want to be represented by Reilly or by the public defender and that he was unable to represent himself. The case was set for trial the next day.

On March 30, 1976, defendant refused to leave the lockup and enter the courtroom. Brought out of the lockup, he stated that he was not ready for trial, that he did not desire to be represented by Reilly or the public defender, and that he needed time to obtain another lawyer and acquire the money to pay him. Thereafter, prospective jurors were called and questioned. When Reilly was introduced as defendant’s attorney, defendant said that he did not have an attorney and Reilly was not representing him. After the jurors were sworn the case was recessed until March 31, 1976. On that day the case was continued pending disposition of a petition filed by Reilly in the United States District Court for the Northern District of Illinois to determine whether he could be compelled to act as defendant’s attorney. On April 2,1976, Reilly advised the court that his petition was dismissed by the district court for want of jurisdiction. Defendant again stated that he did not want Reilly as his attorney and Reilly again moved to withdraw. The court denied the motion to withdraw until another attorney appeared to represent defendant and directed Reilly “to do everything that he can possibly do” on defendant’s behalf. Thereupon, Reilly filed a motion to quash defendant’s arrest, to suppress identification testimony, and to suppress fingerprint evidence. On April 5, 1976, a hearing was conducted on the motions presented by Reilly and the court determined that the police had probable cause to arrest defendant and denied all motions.

On April 8 and 9, 1976, a jury was selected and the defendant again requested time to hire another lawyer. On April 12, 1976, Reilly reported to the court that he had received an anonymous telephone call at his home during which the caller requested that Reilly resign from defendant’s case and made “implied or direct threats” to Reilly and his family. He again moved for leave to withdraw from the case.

On April 14, 1976, the circuit court allowed Reilly’s motion to withdraw and, over the objection of both the public defender and defendant, appointed the public defender to represent defendant. The public defender moved for a substitution of judge, for a change of venue, and for discharge of the jury. The motions were denied. The public defender also moved to continue the case for 30 days, and the court continued the case until April 26, 1976, in order that the public defender might prepare for trial. Prior to adjournment, an assistant public defender had defendant sworn and asked “If this case goes to trial do you wish us to do anything on your behalf during the course of that trial?” The defendant answered “No.”

On April 26, 1976, when questioned by the court, defendant stated that he was not ready for trial because he did not have a lawyer, that he could not proceed pro se, and that he did not desire the services of the public defender. The public defender again requested permission to withdraw and stated that defendant had not cooperated in the preparation of a defense. Permission was denied and the case proceeded to trial. During the assistant State’s Attorney’s opening statement, defendant interrupted, stating that he was being forced to trial, that he had no attorney, and that the judge would not allow him time to obtain one. The jury was removed and the court asked for defendant’s assurances that he would remain orderly. Defendant was warned that he would be removed should another “outburst” occur. As the court ordered the jury to be brought in, defendant said, apparently to the assistant public defenders, “I don’t want you by me. I don’t want you saying nothing, doing nothing, don’t sit by me.” Counsel indicated that they would comply with defendant’s wishes and would sit in the first row of seats in the courtroom, away from defendant.

After the People’s opening statement both assistant public defenders approached the bench and informed the court that they would make no opening statement because defendant refused to discuss the case with them and did not desire them to represent him. They also called to the court’s attention that George Howard, an attorney whom defendant had mentioned previously, was present. Following a recess, defendant stated that Howard would not file an appearance because the court refused to allow him time to prepare. The court noted that it had spoken to Howard in chambers and that he would not be filing an appearance.

Defendant was asked whether he would like to make an opening statement confined to the evidence. Defendant said he would like to address the jury in order to explain that he was being forced to trial against his will. Defendant was told that his opening statement was to be limited to the facts of the case. The court then explained to defendant that he could have one or both appointed attorneys represent him or he could represent himself. After defendant stated that he would continue to make statements to the jury, he was removed until he agreed to conduct himself in an orderly manner. Testimony from the first witness was taken in defendant’s absence. During that testimony, defendant’s presence was sought for the purposes of identification. He refused to enter the courtroom and removed his clothing. The court ordered the sheriffs to dress defendant and bring him to the doorway of the courtroom. Defendant, wearing only his underwear, came to the doorway accompanied by eight deputy sheriffs. At the conclusion of the witness’ testimony, defendant returned to the courtroom and, after the testimony was summarized for him by the assistant public defenders, conducted a brief cross-examination of the witness. Defendant was present for the remainder of the trial and cross-examined two more of the People’s witnesses. He objected to the admission of certain items of evidence and to the instructions tendered by the People. Defendant attempted to elicit the testimony of two witnesses on his behalf, and conducted his own closing argument. Periodically throughout the trial the two assistant public defenders appointed to represent defendant advised the court that they were instructed by defendant not to participate in the trial, and statements by the defendant confirmed this. Nonetheless, on several occasions the assistant public defenders informed the court of objections they would make if permitted to do so by defendant. They also were available to advise defendant throughout the trial and did so several times.

The appellate court held that because defendant was not admonished as required by Supreme Court Rule 401(a) (73 Ill. 2d R. 401(a)) there was no knowing waiver of the right to counsel. Supreme Court Rule 401(a) provides:

“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.”

It concluded that since the requisite Rule 401(a) warnings were not given by the circuit court, there was no waiver of the right to counsel. It held, too, that because he had successfully prevented appointed counsel from actively participating in the trial, defendant did not receive effective assistance of counsel.

The People contend that an examination of the record as a whole reveals substantial compliance with Rule 401(a) and therefore no ground existed for invalidating defendant’s waiver of counsel. Alternatively, they contend that defendant was provided with appointed counsel whose advice he rejected; that under the facts of this case there was no waiver of counsel which would invoke Rule 401(a).

Defendant contends that he did not waive his right to counsel and, in view of his insistence that he could not represent himself, the circuit court should not have permitted appointed counsel “to sit quietly through the trial.” Defendant argues that, as a consequence of the public defender’s inaction, he was denied the effective assistance of counsel.

This record presents a situation which required the circuit court to consider a number of competing interests. Defendant was entitled to the effective assistance of counsel in presenting his defense (People v. Johnson (1979), 75 Ill. 2d 180), and ordinarily would be entitled to counsel of his choice. (People v. Friedrich (1960), 20 Ill. 2d 240.) An indigent defendant is entitled to have counsel appointed for him (Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792) or, should he choose to do so, may conduct his defense without benefit of counsel (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525). In affording a defendant these rights, however, the circuit court is charged with the responsibility to administer justice without needless delay. In recognition of this principle, the right to counsel of a defendant’s own choosing may not be employed as a weapon to indefinitely thwart the administration of justice or to otherwise embarrass the effective prosecution of crime. People v. Friedman (1980), 79 Ill. 2d 341, 349; People v. Solomon (1962), 24 Ill. 2d 586, 590.

We do not agree with the appellate court that the failure to admonish defendant in accordance with Rule 401(a) was error. We find this case analogous in certain respects to People v. Johnson (1979), 75 Ill. 2d 180. There in the midst of trial the circuit judge called the defendant into chambers and informed him that, in the judge’s opinion, defendant was not receiving the assistance of competent counsel. He offered the defendant the option of proceeding with trial or moving for a mistrial and starting anew with different counsel, appointed or retained as the defendant elected. The defendant chose to proceed with his original attorney, but on appeal contended that because the Rule 401(a) admonitions were not given this action did not constitute a waiver of competent counsel. The court disagreed, saying:

“This rule, however, was not intended to apply to the novel situation which here confronted the trial judge. The rule applies when a criminal defendant waives counsel entirely and elects, instead, to represent himself. Here, defendant did not seek to waive counsel and represent himself, but, rather, elected to proceed with counsel of his own choosing despite the judge’s caution that that counsel was incompetent. Rule 401(a) is inapplicable under these circumstances.” 75 Ill. 2d 180, 186.

Here defendant clearly and repeatedly declined to undertake his own representation. Thus, Rule 401(a) was inapplicable. Defendant’s refusal to heed the advice or employ the services of appointed counsel did not necessitate that the circuit court admonish defendant in accordance with Rule 401(a).

Defendant contends that counsel’s failure to participate in the trial deprived him of the effective assistance of counsel. The record shows that this failure to participate resulted from defendant’s refusal to cooperate with appointed counsel and that he forbade counsel’s participation. Given defendant’s conduct, we find the case of People v. Solomon (1962), 24 Ill. 2d 586, apposite. In Solomon a public defender was appointed to represent the defendant when he failed to obtain private counsel. A trial date was set: however, during the time preceding trial, the defendant refused to cooperate in any way with appointed counsel. The public defender moved to continue the trial in order that the defendant obtain counsel of his choice, but the trial court denied that motion. At trial no evidence was introduced on defendant’s behalf. Before this court, the defendant argued both that a continuance should have been granted and that his counsel was incompetent. The court said:

“The granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. [Citations.] Before a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights. [Citations.] In the instant case the public defender was appointed as defendant’s counsel approximately two weeks before trial in ample time to prepare a defense, if one in fact existed. Since defendant utterly refused to co-operate with his counsel, he cannot now be heard to complain that the denial of the motion for continuance embarrassed his defense or prejudiced his rights. We would add, too, that the same conduct of defendant serves greatly to estop the contentions that counsel was incompetent because he made no preparation for trial and because he did not call defendant as a witness. The record discloses that the appointed counsel did his utmost to fulfill his duty to defend, but was effectively frustrated in his efforts by defendant’s lack of cooperation. It would be a strange anomaly indeed if an accused could refuse to aid or co-operate with counsel then, on review, advance counsel’s lack of preparation as a ground of incompetency.” 24 Ill. 2d 586, 589-90.

As did the defendant in Solomon, defendant utterly refused to cooperate with appointed counsel. As a consequence, the inquiry into the quality of representation afforded defendant is cut short. Defendant is estopped to assert the incompetence of counsel. The circuit court took extraordinary pains to accommodate defendant’s desire to retain private counsel. Only when defendant’s efforts served to thwart the administration of justice by delaying trial did the circuit court appoint counsel. Moreover, the assistant public defenders appointed to represent defendant were zealous in their attempts to do so. That they were ultimately ineffective is unfortunate, but is attributable solely to defendant. His attempts to shift responsibility elsewhere must fail.

Under the circumstances shown the circuit court did not fail to comply with Rule 401(a) and the appellate court erred in reversing the judgment.

Defendant states that the appellate court failed to decide several issues which it perceived to be integral to the issue of whether defendant was deprived of effective assistance of counsel. Specifically, defendant’s contentions are that (1) he was deprived of his right to be present during the testimony of the State’s first witness; (2) he was denied a fair trial when, dressed only in his underwear, he was brought into the courtroom by eight deputy sheriffs; (3) the circuit court erred in failing to discharge the jury or conduct voir dire after a 17-day delay between jury selection and trial; and (4) appointed counsel was ineffective when they failed to participate in cross-examining certain witnesses during the sentencing hearing. We note that no written post-trial motion appears in the record and defendant’s oral post-trial motion did not specifically enumerate the contentions now presented. Although it would not be inappropriate to hold them waived, we elect to consider them. Defendant argues that if the decision of the appellate court is reversed and his conviction is affirmed the cause should be remanded to the appellate court for the determination of these issues.

Citing People v. Berland (1978), 74 Ill. 2d 286, the People urge that this court resolve the issues left undecided by the appellate court. Pursuant to Rule 318(c) (73 Ill. 2d R. 318(c)) certified copies of the briefs filed in the appellate court have been filed in this court. Citing Illinois v. Allen (1970), 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057, defendant argues that his right to be present at trial was violated and that his being forcibly brought into the courtroom for purposes of being identified by a witness could have been accomplished by less prejudicial means. The record shows that as the assistant State’s Attorney commenced his opening statement he was interrupted by the defendant, who told the jury that he was “being forced to trial against my will.” He also insisted that he was not represented by counsel and that the court would not permit him to retain a lawyer. The defendant interrupted the assistant State’s Attorney twice more during the opening statement. Upon the calling of the first witness for the People defendant announced “I have an opening statement.” The court excused the jury and the lengthy colloquy which then ensued between the court and defendant amply supports the court’s finding that defendant had indicated that he did not intend to remain silent.

The record also amply supports the conclusion that defendant had removed his clothing in an effort to prevent his being brought into the courtroom and that the efforts of the deputy sheriffs to fully clothe him prior to his presentation to the jury were unsuccessful. Under the circumstances his exclusion from the courtroom was justified and we find no reversible error.

Concerning defendant’s contention with respect to the failure to discharge the jury or conduct additional voir dire, the record shows the jury was sworn on March 30, that jury selection was suspended for approximately a week, that Mr. Reilly conducted the voir dire and the jury was impaneled on April 9. On April 12 Mr. Reilly moved to withdraw, and his motion was allowed on April 14. The first witness was heard on April 26. The record does not show any communication with the jury or any publicity given this case during the interim period. It is clear from the record that the delays in the trial of the case were the result of defendant’s conduct, and he cannot now seek reversal as the result of prejudice which allegedly flowed from that conduct.

Finally we consider defendant’s contention that he did not receive the effective assistance of counsel by reason of their failure to participate in cross-examining certain witnesses during the sentencing hearing. The record shows that defendant had told the assistant public defenders that he did not want them to represent him and did not want motions filed in his behalf, that he had also advised the court that his wife had obtained the services of another attorney but that no such attorney entered his appearance in the case. It was only after the court stated that it would consider that no post-trial motions were to be filed and would proceed with a hearing in aggravation and mitigation that defendant requested that the assistant public defenders file a post-trial motion in his behalf. An oral post-trial motion was then made and the matter proceeded to hearing.

Under the circumstances shown it is understandable that the assistant public defenders did not avail themselves of discovery concerning what the People expected to prove at the hearing in aggravation. We have examined the transcript and fail to see in what manner the admissibility of the testimony might have been affected by cross-examination. It is also difficult to assess what effect such cross-examination might have had on credibility, particularly in view of the fact that most of the testimony was corroborated by documentary evidence in the form of jail and court records. We fail to see in what manner the result of the hearing in aggravation was affected, and clearly there was no prejudicial error.

For the reasons stated the judgment of the appellate court is reversed and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: MR. JUSTICE WARD

license: Public Domain

text:
    (Nos. 53366, 53625, 53719.
    ROBERT L. PHILLIPS, Appellee, v. ROBERT H. GRAHAM, et al., Appellants.—BERNARD SCOTT, Appellee, v. LARRY CASSAVANT et al. (The Illinois Racing Board, Appellant).

      Opinion filed September 30, 1981.

      Robert E. McGlynn, of Belleville, for appellants Robert H. Graham and Southern Illinois Trotting Corporation.
    Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for appellant Illinois Racing Board.
    Leon G. Scroggins, of Granite City, for appellee Robert L. Phillips.
    William E. Brandt, of Granite City, for appellee Bernard Scott.
   MR. JUSTICE WARD

delivered the opinion of the court:

This appeal represents the consolidation of three cases. In two of the cases Bernard Scott and Robert Phillips, who are licensed harness-racing drivers, owners and trainers, were by formal order excluded from the premises of all racetracks under the jurisdiction of this State after separate indictments were returned against them by a grand jury in the circuit court of Madison County. Scott was charged in two counts with accepting a bribe and with failing to report a bribe which was intended to influence his efforts as a harness driver in a race at Fairmount Park in January of 1980. Phillips was charged with offering a bribe to another driver in the same race. Scott and Phillips, in separate proceedings in the circuit court of Madison County, applied for and obtained injunctions which barred the racetrack owners and the Illinois Racing Board (Board) from enforcing the exclusion order. The ground for their applications was a claim that section 9(e) of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 9(e)), which authorizes the exclusion of occupation licensees by organization licensees for “just cause,” was violative of their rights to procedural due process and, further, that this section represented an unconstitutional delegation of legislative authority to private persons. We granted the Board’s motion for direct appeal in each case and consolidated the cases with a separate appeal that had been filed by Robert Graham, vice-president and general manager of Fairmount Park Race Track. 73 Ill. 2d R. 302(b).

The record shows that on March 26, 1980, a grand jury in Madison County returned an indictment against Robert Phillips for conspiring to bribe another harness driver not to use his best efforts in the 10th race on January 8, 1980, at Fairmount Park Race Track in Collinsville. Robert Graham, who was employed as vice-president and general manager of the track, and who was aware of a State investigation into rumored bribery schemes on the track premises, sent a letter to Phillips on the day the indictment was filed informing him that he was excluded from the grounds of Fairmount Park. The reason stated for excluding Phillips was his indictment. In his letter, Graham cited section 9(e) of the Illinois Horse Racing Act of 1975 as authority for his action. This section provides:

“[The Illinois Racing] Board, and any person or persons to whom it delegates this power, may eject or exclude from any race meeting or organizational grounds or any part thereof, any occupation licensee or any other individual whose conduct or reputation is such that his presence on organization grounds may, in the opinion of the Board, call into question the honesty and integrity of horse racing or interfere with the orderly conduct of horse racing; 00°. The power to eject or exclude occupation licensees may be exercised for just cause by the organization licensee or the Board, subject to subsequent hearing by the Board as to the propriety of said exclusion.” Ill. Rev. Stat. 1979, ch. 8, par. 37 — 9(e).

On March 27, Phillips obtained a temporary restraining order against Graham, prohibiting enforcement of the exclusion order. The restraining order was later amended to include the Board, which had been added by the plaintiff as a party. The court in its order, however, also directed Phillips to seek an immediate hearing before the Board on the legality of his exclusion. A hearing was conducted before an officer of the Board on April 7, which resulted in an order affirming Graham’s decision to exclude the plaintiff. The hearing officer also enlarged the order to exclude Phillips from all racetracks under the Board’s jurisdiction. A hearing before the full board was set for April 23. On April 15 the circuit court issued a preliminary injunction enjoining any action by the defendants to exclude the plaintiff until further action by the full board. After an evidentiary hearing on April 23, the six-member board voted unanimously to affirm the hearing officer’s decision.

Subsequent to the Board’s decision, however, the circuit court, on May 5, entered a permanent injunction against the “Board and its organization, licensees, and stewards acting under the authority of the Board *** from enforcing any exclusion against petitioner until the issues in this case are reached either by an appeal from this Order or administrative review of the Racing Board’s determination, or the issuance of an opinion in some other case determinative of the issues raised herein.” The issues alluded to in the order were raised by the plaintiff and concerned claims of violation of procedural due process in that the plaintiff was excluded by Graham, the organization licensee, without a hearing and also the ground that Graham had no constitutional authority to issue an exclusion order since he was not a member of the Racing Board. The defendants had contested the circuit court’s authority to issue an injunction, arguing that, as the plaintiff had not exhausted his administrative remedies under the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1001 et seq.), the court had no jurisdiction.

The circumstances leading to the exclusion of Bernard Scott were similar to those in Phillips’ case. A two-count indictment was returned against Scott in the circuit court of Madison County on April 9, 1980, charging acceptance of a bribe and a failure to report a bribe intended to affect his performance in the 10th race at Fairmount Park on January 8, 1980. On May 7, 1980, Scott received a letter signed by two State Racing Board stewards stating that he was barred from the Quad-City Downs, located in East Moline, as well as every other racetrack in Dlinois. As in the case of Phillips, the only ground given for Scott’s exclusion was his indictment. Scott filed, on May 13, a notice of intention to appeal from the stewards’ ruling to the Racing Board pursuant to rules promulgated by the Board. A hearing was held on May 23 at which the Board affirmed the stewards’ decision to exclude Scott. On May 28 he obtained a temporary restraining order in the circuit court of Madison County, and on June 6 the court entered a preliminary injunction against Larry Cassavant, general manager of Quad-City Downs, and the Board, barring the enforcement of the exclusion order until further order of the court.

The questions presented are (1) whether the exclusion orders violated the plaintiffs’ right to procedural due process; (2) whether the authority given organization licensees to exclude occupation licensees under section 9(e) was an unconstitutional delegation of legislative power; (3) whether the circuit court had jurisdiction to consider the plaintiff’s application for an injunction; and (4) whether the injunctions properly issued.

In considering whether an individual has been deprived of “life, liberty or property” without due process of law (U.S. Const., amend. XIV; Ill. Const. 1970, art. 1,2) we must first determine whether a protectable interest was involved. (See Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 294.) There is no question that the license of the plaintiffs to pursue an occupation, as a trainer, owner and driver of harness horses, is a property interest given protection by the due process clause. (Barry v. Barchi (1979), 443 U.S. 55, 64, 61 L. Ed. 2d 365, 375, 99 S. Ct. 2642, 2649. See also Board of Regents v. Roth (1972), 408 U.S. 564, 572, 33 L. Ed. 2d 548, 558, 92 S. Ct. 2701, 2706-07, quoting Meyer v. Nebraska (1923), 262 U.S. 390, 399, 67 L. Ed. 1042, 1045, 43 S. Ct. 625, 626; Slaughter-House Cases (1873), 83 U.S. (16 Wall.) 36, 21 L. Ed. 394; Pozner v. Mauck (1978), 73 Ill. 2d 250, 254; Rios v. Jones (1976), 63 Ill. 2d 488, 496-97.) Therefore, the plaintiffs could not have been “finally deprived” of their property interest until a hearing was held to determine the rights of the parties. (Mathews v. Eldridge (1976), 424 U.S. 319, 333, 47 L. Ed. 2d 18, 32, 96 S. Ct. 893, 902. See generally Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983.) Regarding the question of when this hearing must take place, the Supreme Court has held that “‘[w]here only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for ultimate judicial determination is adequate.’ ” Mitchell v. W. T. Grant Co. (1974), 416 U.S. 600, 611, 40 L. Ed. 2d 406, 416, 94 S. Ct. 1895, 1902, quoting Phillips v. Commissioner (1931), 283 U.S. 589, 596-97, 75 L. Ed. 1289, 1297, 51 S. Ct. 608, 611.

To determine whether due process requires an evidentiary hearing prior to the impairment or deprivation of a property right, as opposed to a hearing thereafter, the Supreme Court has said that an “analysis of the governmental and private interests that are affected” is necessary. (Mathews v. Eldridge (1976), 424 U.S. 319, 334, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 902.) In Mathews v. Eldridge the Supreme Court went on to say:

“[identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of any additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903.

The plaintiffs first argue that their interest in pursuing their occupation will be irreparably impaired if the defendants asserted right to exclude them, prior to a judicial determination of their guilt, is upheld. The irreparable impairment or harm which the plaintiffs claim is monetary; if they are excluded from all Illinois racetracks they will be unable to practice their occupation and thus will suffer an irreversible economic loss. We do not see the effect as being as drastic as the plaintiffs say. First, the potential loss of earnings is reduced by the fact that the plaintiffs, under the exclusion order, are still able to train and race their horses, albeit through other owners, trainers or drivers. Second, the order did not impose the more serious penalty of suspension or revocation. Thus, the plaintiffs’ licenses remained unaffected, allowing them to carry on with their occupation, though admittedly under the restriction that they could not pursue their activities in person on racetrack premises. Third, the order would not affect races taking place outside the State. The record shows that Phillips had planned to enter a race in Kentucky on April 15. From these considerations, we conclude that there was no “final deprivation” of property without a prior hearing as would violate procedural due process.

With respect to “the risk of erroneous deprivation,” which is the second consideration in Mathews, we would note, as illustrated above, that the deprivation here is only partial. The plaintiffs contend, however, that any decision to exclude or “deprive” must be based on reasonable or good cause. They argue that using the fact of an indictment as the sole ground of the decision to exclude does not satisfy the claimed requirement of reasonable cause.

We would observe that section 9(e) does not use the term “reasonable or good cause” as the standard for the exclusion of an occupation licensee, but instead it provides that “[t]he power to eject or exclude occupation licensees may be exercised for just cause by the organization licensee or the Board, subject to subsequent hearing by the Board as to the propriety of said exclusion.” (Emphasis supplied.) Ill. Rev. Stat. 1979, ch. 8, par. 37 — 9(e).

The decisions cited by the plaintiffs, for example, with respect to the presumption of innocence following indictment are not relevant here. We are considering only whether an indictment for bribery, a bribery intended to affect the outcome of a horse race, could be judged as just cause for the plaintiffs’ exclusion.

In considering this question we look, too, to the function of the grand jury. A grand jury has a general duty to “inquire into offenses which come to its knowledge whether from the court, the State’s Attorney, its own members, or from any source.” (People v. Sears (1971), 49 Ill. 2d 14, 30.) The principal purpose of its inquiry is to determine whether there is probable cause to believe that a crime has been committed. (See People v. Creque (1978), 72 Ill. 2d 515, 523, quoting 1 Wigmore, Evidence §4, at 21 (3d ed. 1940); United States v. Gardner (7th Cir. 1975), 516 F.2d 334, cert. denied (1975), 423 U.S. 861, 46 L. Ed. 2d 89, 96 S. Ct. 118.) The decisions to exclude Phillips and Scott were not based on simple rumor or innuendo but upon formal charges by the grand jury in the name of the People of the State that crimes had been committed by each defendant. Considering the gravity of the accusations and especially that the indictments related directly to the “honesty and integrity of horse racing” (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 9(e)), the occupation licensee, Robert Graham and the Racing Board had just cause to exclude the plaintiffs. That the indictment was later dismissed as to Phillips is not relevant to the question of whether just cause existed earlier.

Too, the procedure established by the Racing Board to determine promptly the propriety of an exclusion order issued by an organization licensee significantly reduces the “risk of erroneous deprivation.” Sections (a) and (c) of Rule A 4.02 promulgated by the Board under authority of the Act (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 9) provide:

“(a) Any person aggrieved by a decision ruling, recommendation or other action of the judges or stewards of any race meeting may as a matter of right request a hearing before the Board. Such a hearing shall be a proceeding de novo.
(c) Appeals from orders of the stewards or judges suspending an occupation licensee or from orders of the organization licensee (race track) ejecting or excluding an occupation licensee shall be instituted by filing a written request for a hearing no later than five days after receipt of notice of suspension, ejection or exclusion has been communicated to the licensee. The Board will conduct its hearing within seven days after such request has been received by the Board unless the licensee requests a postponement for good cause.”

Thus, a licensee can obtain a de novo hearing before the Board as early as one week and no later than 12 days after receiving an exclusion order. The presence of these rules of the Board provided “procedural safeguards” as is referred to in Mathews.

Considering governmental interest, the third factor in the Mathews test, it is plain that this interest is involved.

Where a State has the authority to prohibit a privilege or activity it has as an alternative the right under the police power to impose restrictions and conditions on its enjoyment or use so long as they do not amount to a violation of established constitutional rights. (Frost v. Railroad Com. (1925), 271 U.S. 583, 70 L. Ed. 1101, 46 S. Ct. 605.) Wagering or gambling is an activity which is “subject to regulation or to complete prohibition” (Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 138) and one in which the State’s interest in protecting the public from dishonest practices and in preserving the integrity of horse racing is clear. It is a truism to say that the horse-racing industry depends upon public confidence in the sport and upon integrity and professional efficiency in its operation. A review of the Horse Racing Act and its comprehensive and detailed list of statutory requirements discloses the legislature’s interest in imposing strict controls on an industry which on occasion has been vulnerable to dishonest men and practices. Permitting persons under indictment for bribery in horse racing to continue to participate at tracks as owners, trainers or drivers can only serve to provoke public suspicion and criticism and to reduce the substantial revenues derived by the State from racing. The provision in section 9(e) permitting an organization licensee to exclude an occupation licensee from racetrack premises under section 9(e) for just cause is a reasonable and appropriate provision by the legislature under its police powers to protect public health and safety and to promote the public welfare. (See City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, 114-15; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 453-54; Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 138-40; Pozner v. Mauck (1978), 73 Ill. 2d 250, 254-55.) Excluding the plaintiffs because of their having been indicted, though an evidentiary hearing was not conducted prior to the order of exclusion, was not, under the circumstances here, violative of due process.

Our holding is supported by a recent Supreme Court decision involving facts which resemble those here. In Barry v. Barchi (1979), 443 U.S. 55, 61 L. Ed. 2d 365, 99 S. Ct. 2642, a licensed New York horse trainer was summarily suspended under statutory provisions without a hearing after a post-race urinalysis of one of his horses revealed the presence of an illegal drug. Under the New York statute it is presumed that the drug was either administered by the trainer or that he was negligent in failing to protect the horse from being given the drug. The trainer contended that, since he had a protectable property interest, due process required a presuspension hearing. The court acknowledged the trainer’s property interest in his license but held his rights had not been violated:

“We do not agree with Barchi’s basic contention, however, that an evidentiary hearing was required prior to the effectuation of his suspension. Unquestionably, the magnitude of a trainer’s interest in avoiding suspension is substantial; but the State also has an important interest in assuring the integrity of the racing carried on under its auspices. In these circumstances, it seems to us that the State is entitled to impose an interim suspension, pending a prompt judicial or administrative hearing that would definitely determine the issues, whenever it has satisfactorily established probable cause to believe a horse has been drugged and that a trainer has been at least negligent in connection with the drugging. [Citations.] In such circumstances, the State’s interest in preserving the integrity of the sport and in protecting the public from harm becomes most acute. At the same time, there is substantial assurance that the trainer’s interest is not being baselessly compromised.” 443 U.S. 55, 64-65, 61 L. Ed. 2d 365, 375, 99 S. Ct. 2642, 2649.

We turn to the plaintiffs’ contention that the authority given organization licensees under section 9(e) to exclude occupation licensees, as the plaintiffs here, amounted to an unconstitutional delegation of legislative authority. The defendants’ response is that the right to exclude does not constitute the delegation of authority but is simply a specific grant of authority under section 9(e) from the legislature. Further, they say, section 9(e) is simply a codification of a common law right of racetrack owners to exclude persons from the track premises.

A challenge on the ground of improper delegation of legislative power presupposes there has been an attempted grant of some traditional legislative power or authority to an administrative agency or private person. (See generally 1 K. Davis, Administrative Law Treatise §§3:1 through 3:18 (2d ed. 1978).) Typically, this question rises where the authority delegated is in effect the power to make law. (See, e.g., Rouse v. Thompson (1907), 228 Ill. 522.) It also may be presented when a public body or person has been delegated the power to appoint or to fill vacancies in public office (see, e.g., People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321; People v. Chicago Transit Authority (1945), 392 Ill. 77; State Board of Agriculture v. Brady (1915), 266 Ill. 592), or when the legislature has authorized an administrative agency or person to execute, in a prescribed manner, some legislative power. See Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287; Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361; Hill v. Relyea (1966), 34 Ill. 2d 552.

There is no such delegation of a recognized legislative power here. The right to exclude patrons from a private enterprise, here a racetrack, has long been recognized at common law. (See, e.g., Marrone v. Washington Jockey Club (1913), 227 U.S. 633, 57 L. Ed. 679, 33 S. Ct. 401; Flores v. Los Angeles Turf Club, Inc. (1961), 55 Cal. 2d 736, 361 P.2d 921, 13 Cal. Rptr. 201; Tamelleo v. New Hampshire Jockey Club, Inc. (1960), 102 N.H. 547, 163 A.2d 10; Annot., 90 A.L.R.3d 1361 (1979).) Though it cannot be said that section 9(e), which goes further and permits the exclusion of occupation licensees, is a precise codification of the common law right, it is clear that the authority to exclude here is not derived from some recognized legislative power, unique to the legislature, that has been delegated to organization licensees. It is simply, as the State argues, a grant of authority by the legislature.

Finally, we consider whether the circuit court had jurisdiction to entertain the plaintiffs’ petitions for injunction and, if so, whether the injunctions properly issued.

Speaking generally, one may not seek judicial relief from an administrative action unless he has exhausted all administrative remedies available to him. (See Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358, citing Myers v. Bethlehem Shipbuilding Corp. (1938), 303 U.S. 41, 82 L. Ed. 638, 58 S. Ct. 459.) The rationale of this, as described in Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358, is that: “(1) it allows full development of the facts before the agency; (2) it allows the agency an opportunity to utilize its expertise; and (3) the aggrieved party may succeed before the agency, rendering judicial review unnecessary. 2 F. Cooper, State Administrative Law 572-574 (1965); L. Jaffe, Judicial Control of Administrative Action 424-26 (1965); 3 K. Davis, Administrative Law Treatise secs. 20.01 — 20.10 (1958), and 1970 Supplement at 642-669.” There are, however, exceptions to this rule (see, e.g., Getto v. City of Chicago (1979), 77 Ill. 2d 346, 356; Graham v. Illinois Racing Board (1979), 76 Ill. 2d 566, 573), and the one applicable here provides that a party need not exhaust his administrative remedies when he attacks the constitutionality of a statute on its face. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548.) If, however, the complaint is not that the statute on its face is unconstitutional but rather is that it was applied in a “discriminatory or arbitrary manner,” the party must first seek relief through the administrative remedies provided. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552.) Here, the plaintiffs separate petitions for injunction claimed that the authority given an organization licensee to exclude an occupation licensee under section 9(e) without a prior hearing was violative of due process and, further, that it was an unconstitutional delegation of legislative power. This direct attack on the constitutionality of section 9(e) made it proper for the circuit court to assume jurisdiction and consider the petitions for injunction even though the plaintiffs had not exhausted their administrative remedies under the Illinois Horce Racing Act of 1975 and the Illinois Administrative Procedure Act.

The circuit court here judged, erroneously, that section 9(e) was unconstitutional. It granted the injunctions and these appeals followed. It was proper for the court to consider the petitions for injunction though the administrative remedies available had not been exhausted only because constitutionality was directly challenged. If the circuit court had acted correctly here it would have held section 9(e) to be constitutional, denied the petitions for injunction, and ordered the plaintiffs to follow their administrative remedies. Given our holding that section 9(e) is constitutional, it follows that the plaintiffs must pursue their administrative remedies under the Illinois Horse Racing Act of 1975 and the Illinois Administrative Procedure Act. The injunctions should not have issued. See generally Withrow v. Larkin (1975), 421 U.S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456.

For the reasons given, the judgments of the circuit court of Madison County are reversed.

Judgments reversed.


author: MR. JUSTICE RYAN

text:
    (No. 52598.
    PSL REALTY COMPANY et al., Appellants, v. GRANITE INVESTMENT COMPANY et al., Appellees (Federal Savings and Loan Insurance Corporation, Appellant).

      Opinion filed September 30, 1981.

      W. Stanley Walch, Robert H. Brownlee, and Mary K. Bennett, of Thompson 8c Mitchell, of St. Louis, Missouri, and James H. Bandy of Listonan, Bandy 8c Hamilton, of Belleville, for appellants Illini Federal Savings 8c Loan Association and PSL Realty.

      Robert W. Patterson and William J. McKenna, of Hopkins, Sutter, Mulroy, Davis &: Cromartie, of Chicago, for appellant Federal Savings & Loan Insurance Corporation.
    Rex Carr and David J. Letvin, of Cohn, Carr, Korein, Kunin, Schlitchter 8c Brennan, of East St. Louis, for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The complexity of the factual picture surrounding this litigation makes it extremely difficult to succinctly state the nature of the case and its issues. Broadly stated, this case involves the issuance of an injunction by the appellate court of this State enjoining the holder of certain notes and mortgages on real estate from proceeding with a foreclosure proceeding in the Federal district court and, in turn, an injunction issued by the Federal district court enjoining State court appellate and circuit judges from interfering with the jurisdiction of the Federal court in the foreclosure proceeding. A clearer understanding of the case must await the recitation of facts.

During the 1960’s, defendant James Green (Green), with others, developed and constructed several apartment complexes in Madison, Clinton, St. Clair and Sangamon counties, Illinois. To obtain funds for the projects, first-lien mortgages were executed in favor of Piasa Savings and Loan Association (Piasa). Financial difficulties were encountered in the completion and operation of the units, requiring a restructuring of the debt. To accomplish this, the parties entered into an agreement, termed the “base agreement,” on August 1, 1970. Under its terms, title to the real estate was conveyed to a newly formed corporation named PSL Realty Company (PSL), which was wholly owned by Piasa. PSL then entered into contracts for deed to the same properties with Granite Investment Company (Granite), a limited partnership of which Green was the principal partner. The contract provided that Granite was to manage the properties and provided for conveyance to Granite after payments had been made and certain conditions fulfilled. Piasa continued to hold the first-lien mortgages as mortgagee. By the terms of the base agreement, rental proceeds of the units were to be delivered to PSL by Granite.

This arrangement did not improve the financial situation, and in 1971 the Federal Savings and Loan Insurance Corporation (FSLIC) determined Piasa was on the verge of insolvency and procured the merger of Piasa into Illini Savings and Loan Association (Illini). Illini thus became the sole owner of PSL Realty Company, which, under the base agreement, was the holder of legal title to the properties subject to a contract for deed to Granite. Also, by virtue of the merger, Illini became the owner of the mortgages. As an inducement to Illini, a contribution agreement was entered into whereby FSLIC agreed to subsidize Illini for certain losses and FSLIC was granted an option to terminate the subsidy by purchasing certain assets from Illini at book value. At the time of the merger, the Green loans totaled about $14 million and were delinquent. The apartment complexes continued to lose up to $30,000 per month. On March 27, 1972, PSL and Illini demanded the books and records from Granite, but they were refused. On April 11, PSL and Illini sought, and received, a temporary injunction in the circuit court of Madison County. The injunction ordered Granite and Green to refrain from collecting rents and not to interfere with PSL’s collection of the s^me, and to turn over their books for examination. Also, in April 1972, notice of default and forfeiture of the contracts for deed between PSL and Granite were served upon Granite and Green. On April 28,1972, the trial court denied a motion by Granite and Green to dissolve the temporary injunction and on motion of PSL and Illini appointed FSLIC receiver of the properties pendente lite. Pursuant to authority contained in the receivership order, FSLIC designated Illini as its local agent in the management of the properties.

Green and Granite filed an interlocutory appeal contesting the issuance of the temporary injunction and the appointment of the receiver. The original opinion of the appellate court, dated July 23, 1976, dissolved the temporary injunction and receivership on the ground that they were merely ancillary remedies, and that they were inappropriate in the absence of a complaint stating an underlying cause of action. (P.S.L. Realty Co. v. Granite Investment Co. (1976), 42 Ill. App. 3d 697.) The cause was remanded for an accounting of the receivership, the distribution of the net income, and the setting of fees for the receiver.

On August 13, 1976, PSL and Illini filed a petition for rehearing in the appellate court. They pointed out that they had received no installment payments on the contracts for deed, contrary to an assumption in the opinion, and requested an order of the appellate court directing the receiver to apply accumulated monies in its hand to the contracts.

On August 18,1976, asserting its contractual right under the contribution agreement with Illini, FSLIC purchased the first-lien mortgages on the property, which was in receivership, for $10,673,000, and on August 26,1976, filed a mortgage foreclosure action in the Federal District Court for the Southern District of Illinois.

On August 31, 1976, Granite and Green also petitioned the Illinois Appellate Court for rehearing of its decision which dissolved the temporary injunction and receivership. Granite and Green, in addition to asserting that they were entitled to an award of part of the money held by the receiver, alleged that FSLIC had acquired the mortgages and was prosecuting a foreclosure action in Federal court, both in contravention of its duty as receiver.

On the same day, FSLIC petitioned the Federal district court for an order authorizing it to remain in possession of the subject real estate as mortgagee. Granite opposed the petition on the grounds that FSLIC was estopped, by its conduct, from proceeding with foreclosure and that FSLIC had no legal right to purchase the mortgages in light of the State court’s jurisdiction. On September 2,1976, the Federal district court entered an order authorizing FSLIC to remain in possession of the properties as mortgagee, but provided specifically:

“That this order shall become operative upon the effective date of the mandate from the Illinois Appellate Court for the Fifth District dissolving FSLIC’s status as receiver of the subject properties.”

On September 23, 1976, the appellate court denied the petitions for rehearing and filed a supplemental opinion to the one previously filed. The mandate issued October 13, 1976. We will later consider the nature of the mandate in more detail. After the mandate issued, the district court, pursuant to its order of September 2, proceeded with the foreclosure action.

When the State court case returned to the trial court on remand, the receiver, FSLIC, filed a petition for an order directing it to file a final report and setting a hearing thereon. On November 1, 1976, Granite and Green filed both an objection to the petition of FSLIC and a petition of their own alleging that, contrary to representation, FSLIC had a substantial interest in the properties when it was appointed receiver. The petition also alleged that, in breach of its fiduciary duty, FSLIC purchased the 48 mortgages on the properties of which it was receiver, accelerated the payments due upon such mortgages, and filed suit to foreclose all 48 mortgages. The petition concluded with a prayer that the receiver be ordered to immediately reassign the mortgages to Illini, account for all its expenditures, and return physical possession and management of the properties to petitioners.

FSLIC filed a response to the November 1, 1976, petition of Granite and Green in which it denied any wrongdoing in its actions as receiver, set out the authority by which it acquired the mortgages, and alleged that it acquired the mortgages and instituted foreclosure only after the appellate court had ordered the receivership dissolved. On December 22, 1976, on its own motion, the trial court struck the Granite and Green petition of November 1,1976, and the response of FSLIC thereto for the reason that neither of the pleadings was responsive to the mandate of the appellate court. The court also ordered the filing of the final account of the receiver and objections thereto.

In the trial court numerous motions, objections and other pleadings not relevant to this opinion were filed by various parties. A detailed recitation of these pleadings and the court’s rulings thereon is contained in the appellate court opinion filed in deciding the appeal from the judgment of the circuit court on remand, which we are now reviewing. (76 Ill. App. 3d 978.) The final account of the receiver and objections thereto were filed in the trial court as directed. A hearing was held thereon and on other pending pleadings. On April 29, 1977, the trial court entered an order, the pertinent parts of which did the following: (1) approved and adopted the final report of the receiver, including all actions taken by the receiver and its managing agent; (2) awarded the receiver a fee of 4% of the gross receipts generated by the receivership and directed payment from the undistributed proceeds; (3) directed that the balance of the undistributed funds be paid to the mortgagee (FSLIC) for application to the indebtedness encumbering the property; and (4) discharged and released the receiver and its agents, effective September 30, 1976. Granite and Green appealed both from the order striking their petition of November 1, 1976, which charged FSLIC with breaching its fiduciary duty and from the final order entered April 29, 1977.

While the appeal by Granite and Green was pending before the appellate court, the trial of the foreclosure case in Federal court was proceeding. On November 16, 1978, FSLIC rested its case and Granite’s motion for a directed verdict was denied. The trial was subsequently recessed, and in the spring of 1979 the district court advised the parties that the trial would resume on September 24, 1979.

On September 13, 1979, the Illinois Appellate Court entered its judgment in the appeal of the circuit court order discharging the receiver. The appellate court held that FSLIC breached its fiduciary duty as a receiver by acquiring the notes and mortgages to the property, remanded the case to the circuit court and directed it to order FSLIC to credit its receiver’s fee to the mortgages, and directed FSLIC to convey the notes and mortgages back to Illini. In all other respects the order appealed from was affirmed. 76 Ill. App. 3d 978.

On September 24, 1979, in the Federal court case, Granite and Green moved to dismiss the proceedings because the State appellate court, in its September 13 order, had directed FSLIC to reconvey the mortgages to Illini. On September 25, the parties were informed that the Federal district court judge had rejected the arguments of Granite and Green and that the hearing in the foreclosure case would proceed on September 27.

On September 26, Granite, having given notice to opposing counsel, appeared before a justice of the State appellate court and requested an injunction against FSLIC from proceeding with the foreclosure in the Federal court. On the same day, a justice of the Illinois Appellate Court entered an order staying the September 13, 1979, decision of the appellate court. The order also enjoined FSLIC and PSL from proceeding with the foreclosure case in Federal court and, along with Illini, restrained them from transferring the properties. The order further declared that any attempted future transfer of title to the properties by FSLIC, Illini, or PSL would be void. It then directed that this cloud on the titles to the properties be recorded with the recorder of deeds in the respective counties in which the properties were situated.

On September 26,1979, the Federal district court, in the foreclosure proceeding, after having denied the motion to dismiss the case the previous day, entered an order confirming its jurisdiction of the parties and noted that it was compelled to do whatever was necessary to protect its jurisdiction. On September 27 the district court was presented with the order for stay issued by the State appellate court. The district court admonished the parties to make every effort to avoid a conflict between the two court systems. -FSLIC represented to the district court that it would ask the State appellate court to reconsider its order, and the foreclosure hearing was again recessed until October 1, 1979.

On September 28 the State appellate court heard FSLIC’s motion to reconsider its previous order. On October 1,1979, the appellate court informed the parties by telephone that the injunction against PSL, FSLIC, and Illini remained in effect.

After being advised on October 1 of the appellate court’s action, the Federal district court decided that an injunction pursuant to 28 U.S.C. §2283 (1976) was necessary in aid of its jurisdiction. The district court found that the actions of the Illinois Appellate Court interfered with the property in its possession. The injunction restrained, among others, all justices of the Illinois Appellate Court for the Fifth District, and all judges of the Illinois circuit courts who received actual notice of the injunction, “from taking any action, without prior written permission of this Court, which in any way, directly or indirectly, impinges upon, limits, or otherwise interferes with the jurisdiction of this Court in this cause * * On October 3,1979, the Illinois Appellate Court issued a supplemental opinion which sustained the injunction against FSLIC, PSL and Illini, and declined to remove the restraint on the alienability of the properties.

Also, on October 3, 1979, the parties to the foreclosure action appeared before the district court pursuant to its order for the resumption of the trial. At that time, Granite filed a notice of appeal from the injunction order of the district court to the United States Court of Appeals for the Seventh Circuit. It also filed a motion requesting a stay of the enforcement of that order and a postponement of the foreclosure proceedings pending Granite’s appeal. The district court denied the motion for stay, but allowed Granite until October 5 to obtain a postponement of the proceeding directly from the United States court of appeals and ordered the trial to resume on October 9. On October 5,1979, the United States court of appeals denied Granite’s application for a stay of the proceedings.

On October 9, 1979, Granite filed a debtor’s petition to reorganize under chapter 11 of the Bankruptcy Act in the United States bankruptcy court for the Southern District of Illinois. Later that day, Granite advised the district court of the petition and asserted that under section 362(a) of the Act the foreclosure proceedings were automatically stayed. 11 U.S.C.A. § 362(a) (1979).

On October 24, 1979, this court entered an order recalling the appellate court mandate and staying the appellate court order. We granted leave to appeal in this matter on January 30, 1980.

On September 12, 1980, the court of appeals rendered its decision concerning the permanent injunction entered by the Federal district court on October 11, 1979. It concluded that the district court had acted properly. The court of appeals concluded that the circuit court of Madison County had never acquired jurisdiction, since only ancillary relief had been sought. Consequently, the acts of the State court were void and the district court was free to assert exclusive jurisdiction over the properties. The subsequent stay order issued by the appellate court effectively interfered with the control exercised by the district court. Thus, the district court properly exercised its judicial discretion in enjoining the Illinois Appellate Court. (Federal Savings & Loan Insurance Corp. v. PSL Realty Co. (7th Cir. 1980), 630 F.2d 515.) In setting forth our statement of facts, we have, to a great extent, followed the format of the court of appeals in the case cited. In discussing the issues involved and their resolution, it will be necessary to state some of the above facts in more detail. We will attempt to avoid unnecessary repetition.

We will first discuss the effect of the judgment of the appellate court entered on the first appeal, which was an appeal from the order of the circuit court issuing a temporary injunction and appointing FSLIC receiver pendente lite. (42 Ill. App. 3d 697.) In doing so, we must consider the proceedings which resulted in the appointment of FSLIC as the receiver pendente lite and those leading to the appellate court’s judgment in more detail. On April 11, 1972, PSL and Illini filed a complaint for a temporary injunction in the circuit court of Madison County, alleging that, by virtue of the base agreement, all rents collected from the property subject to the mortgages were to be paid to PSL, that Granite refused to make these payments to PSL, that Illini and PSL attempted to collect the rents directly from the tenants, that Granite and Green interfered with this attempt by Illini and PSL to collect the rents, and that Granite and Green continued to attempt to collect the rents. The court entered a temporary injunction. Granite and Green moved to dissolve the temporary injunction and filed a cross-complaint asking that Illini and PSL be enjoined from interfering with Granite and Green’s management of the properties. It appears that no written pleading was filed requesting the appointment of a receiver. The record reflects that on April 26, 1972, during the hearing on the above pleadings, a discussion was had as to the advisability of appointing a temporary receiver because of the rents that would come due pending the resolution of the dispute as to who should collect the rents. Apparently, an oral motion to appoint a temporary receiver was made by PSL and Illini. The office of the FSLIC was contacted and asked if it would act as the receiver. The court then ordered that if FSLIC would consent to act, it would appoint FSLIC as temporary receiver. On April 28,1972, the court entered the order appointing FSLIC as receiver pendente lite to manage, lease, pay bills, collect rents, supervise and repair the properties, and to report to the court on the 15th day of each month as to the income and expenditures from the property. No provision was contained in the order as to what disposition the receiver should make of the amounts collected in excess of the authorized expenditures.

Granite and Green filed an interlocutory appeal from the order entering the temporary injunction and the order appointing the receiver pendente lite. Although the order appealed from was entered April 28, 1972, the case was not argued orally in the appellate court until March 31, 1976, almost four years later. The case had been continued from time to time at the request of the parties on the representation that settlement was imminent. When the case was finally decided, the appellate court declared that the orders for temporary injunction and temporary receivership were wrongfully entered, finding that such remedies are mere ancillary remedies and cannot stand alone as the full and ultimate relief afforded. The appellate court thereupon dissolved the temporary injunction and receivership. The court noted, however, that during the nearly four years’ delay, Granite and Green acquiesced in the continued receivership status and, in fact, had originally agreed to the appointment of FSLIC as receiver. Therefore, the court held that although the receivership must be dissolved, Granite and Green were not entitled to have the service of the receivership at no cost to them. The appellate court then remanded the case to the trial court to determine what amount should be assessed as expenses and fees of the receivership. The opinion concluded: “Temporary injunction and receivership dissolved. Cause remanded with directions.” (42 Ill. App. 3d 697, 703.) The opinion was filed July 23, 1976.

Although both the plaintiffs and the defendants filed petitions for rehearing, neither petition challenged the dissolution of the receivership. A supplemental opinion was filed on the denial of rehearing on September 23, 1976.

We noted earlier in this opinion that on August 18,1976, FSLIC purchased the mortgages from Illini and on August 25, 1976, filed a mortgage foreclosure action in the Federal district court. On August 31, 1976, FSLIC petitioned the district court for an order authorizing it to remain in possession, and on September 2, 1976, the district court entered such an order but provided that it become effective on the issuance of the mandate by the appellate court. The appellate court issued its mandate to the circuit court of Madison County on October 13, 1976.

The appellate court opinion, filed July 23, 1976, did two things. First, it dissolved the temporary injunction and receivership. It did not remand the case to the circuit court with directions that that court enter the order of dissolution. Second, the judgment of the appellate court remanded the case to the trial court to determine the expenses and compensation for the receiver and to determine whether the plaintiffs were entitled to receive from the funds in the hands of the receiver the accrued unpaid installments upon the contracts for deed.

We must first determine the effective date of the judgment of the appellate court. That judgment was final when entered and not on the date that the mandate of the appellate court issued. (Upton v. Swedish American Hospital (1910), 157 Ill. App. 126, 128.) The mandate of a court of review is the transmittal of the judgment of that court to the circuit court, and revests the circuit court with jurisdiction. (See Board of Directors v. People ex rel. Raymond (1901), 189 Ill. 439, 454-55; Fisher v. Burks (1918), 285 Ill. 290, 291-93; Continental Paper Grading Co. v. Fisher & Associates, Inc. (1957), 13 Ill. App. 2d 1, 5; Busser v. Noble (1961), 32 Ill. App. 2d 181, 186.) Our Supreme Court Rule 368(a) (73 Ill. 2d R. 368(a)) provides that the mandate of the reviewing court shall be transmitted to the circuit not earlier than 21 days after the entry of the judgment. The date of the issuance of the mandate does not control the effective date of the appellate court judgment. Thus, the judgment of the court of review is entered when the opinion is filed with the clerk of the court and the mandate (the transmittal of it to the circuit court revesting that court with jurisdiction) will issue not earlier than 21 days after the opinion is filed with the clerk. Also, the filing of a petition for rehearing does not alter the effective date of the judgment of a reviewing court unless that court allows the petition for rehearing, in which event the effective date of the judgment is the date that the judgment is entered on rehearing. (See 73 Ill. 2d R. 367(a).) In this case the petitions for rehearing were not allowed. They were denied, and the original opinion was modified on denial of rehearing, but only as to the matters to be considered on remand, which we will discuss later.

The judgment of the appellate court entered on July 23, 1976, was final as to the dissolution of the receivership. When a judgment is reversed by a court of review, the judgment of that court is final upon all questions decided, and if the cause is remanded, the circuit court can take only such action which conforms to the judgment of the court of review. (Crozier v. Freeman Coal Mining Co. (1936), 363 Ill. 362, 390; Nye v. Nye (1952), 411 Ill. 408, 414.) Therefore, on July 23, 1976, the date of the filing of the original appellate court opinion, the receivership was dissolved, and the authority vested in the receiver to manage the real estate, collect the rents, etc., terminated. The appellate court used the term “dissolved,” whereas, ordinarily, in setting aside an order creating a receivership, the term used by the text writers hereinafter cited is “vacated.” We should note that this is not a case where the receiver has been removed, which would only terminate the appointed receiver’s authority to act. In such case the control of the property would continue in the court. Here, the order of the appellate court did not simply remove the receiver. It terminated the receivership, that is, it terminated the authority of the court to continue to deal with the mortgaged property. (See 3 Clark, Receivers §692.1, at 1274 (3d ed. 1959).) Although the order had the effect of releasing the mortgaged real estate from the receivership, FSLIC, while acting as receiver, had collected rents and, at the time of the order dissolving the receivership, held sums of money derived from the rental income of the property. Although the dissolution order had the effect of removing the mortgaged property from the receivership, it was necessary for the court to retain jurisdiction of the money in the hands of FSLIC in order to assure a proper distribution thereof. Thus, it could be said that in this respect, at least, and to this extent only, the order of July 23, 1976, did not discharge the receiver. (See 3 Clark, Receivers § 695, at 1280 (3d ed. 1959); High, Receivers § 833, at 986 (4th ed. 1910).) It is not necessary to determine whether the appellate court’s order dissolving the receivership totally discharged the receiver or only discharged the receiver as to the mortgaged property. Even if the dissolution order were viewed as a total discharge of the receiver and the receivership, the funds in the hands of FSLIC must be considered as funds held by the court for others, and in this respect FSLIC would be either a trustee of those funds, or a de facto receiver, and the court, in the exercise of its equitable powers, must control the distribution of these funds. (See Doyne v. Saettele (8th Cir. 1940), 112 F.2d 155.) In any event, the order of the appellate court of July 23, 1976, removed from the jurisdiction of the State court the property covered by the mortgages held by Illini.

Therefore, on August 18, 1976, when FSLIC purchased the mortgages from Illini, the property covered by these mortgages was not an asset of the receivership and was not under the jurisdiction and control of the State court. Also, when the mortgage foreclosure action was filed in the district court, the property was not under the jurisdiction or control of another court. In an in rem proceeding, in which the court must have control of the property which is the subject matter of the suit in order to grant the relief sought, the court first acquiring control of the property is entitled to maintain and exercise its jurisdiction to the exclusion of other courts. (Mandeville v. Canterbury (1943), 318 U.S. 47, 48-49, 87 L. Ed. 605, 606-07, 63 S. Ct. 472, 473; see generally 14 Ill. L. & Prac. Courts §261, at 418 (1968).) Therefore, when the mortgage foreclosure action was filed in the Federal court, that court acquired jurisdiction of the mortgages and the property covered by them, and it was entitled to exercise its jurisdiction to the exclusion of the State courts. The appellate court order of September 13, 1979, rendered following the filing of its opinion in the second appeal which directed FSLIC to reconvey the notes and mortgages back to Illini, the stay order and injunction issued by the appellate court enjoining FSLIC and PSL from proceeding with the foreclosure case pending in the Federal court, the order declaring void any transfer of the property by FSLIC, PSL and Illini, and the order directing that the court’s order be recorded as a cloud on the title to the real estate are all void. This holding also applies to similar provisions in the subsequent orders of the appellate court of October 1 and October 3,1979, which in any way impinge upon the exercise of jurisdiction or control of the notes, mortgages and real estate involved in or connected with the mortgage foreclosure proceeding in the Federal district court.

Although the State court no longer had any authority to deal with the mortgages on the real estate, FSLIC was still subject to the jurisdiction and control of the court by the authority of whose order it had collected the money which it held. The appellate court, in the second appeal, found that FSLIC, in purchasing the mortgages from Illini, had acted in a manner incompatible with its position as an officer of the court and ordered that all fees and compensation be denied to FSLIC and that the fees and compensation that had been allowed be paid toward the satisfaction of the mortgages.

The circuit court had denied Granite and Green this last-stated relief, which the appellate court allowed. In determining the correctness of the circuit court’s denial of this relief, we must look to the command of the mandate which the appellate court had issued in 1976 upon its remand of the case in the previous appeal.

The correctness of the trial court’s action on remand is to be determined from the appellate court’s mandate, as opposed to the appellate court opinion. (Muhlke v. Muhlke (1918), 285 Ill. 325; Fisher v. Burks (1918), 285 Ill. 290; see generally 3 Ill. L. & Prac. Appeal & Error §985, at 225 (1953).) However, if the direction is to proceed in conformity with the opinion, then, of course, the content of the opinion is significant. (People ex rel. Barrett v. Bardens (1946), 394 Ill. 511; People ex rel. Olson v. Scanlan (1920), 294 Ill. 64; People ex rel. Andalman v. Finnegan (1932), 350 Ill. 109.) In construing the language, matters which are implied may be considered embraced by the mandate. (Chicago Ry. Equipment Co. v. National Hollow Brake Beam Co. (1909), 239 Ill. 111.) The trial court may only do those things directed in the mandate. (People ex rel. Maeras v. Chicago, Burlington & Quincy R.R. Co. (1967), 36 Ill. 2d 585, dismissed (1967), 389 U.S. 427, 19 L. Ed. 2d 655, 88 S. Ct. 578; Serbian Eastern Orthodox Diocese v. Milivojevich (1979), 74 Ill. 2d 574, cert. denied (1979), 433 U.S. 904, 61 L. Ed. 2d 872, 99 S. Ct. 3096; People ex rel. White v. Busenhart (1963), 29 Ill. 2d 156; People ex rel. McLaren v. DeBoice (1941), 377 Ill. 634; People v. National Builders Bank (1957), 12 Ill. 2d 473; see generally 3 Ill. L. & Prac. Appeal & Error §883, at 144 (1953).) The trial court has no authority to act beyond the dictates of the mandate. Thus, the controlling question in the appeal from the remand in this case is whether the trial court complied with the mandate.

The mandate in question on remand from the previous appeal stated in part:

“THEREFORE, It is considered by the Court, that, for that error, and others in the record and proceedings aforesaid, the judgment of the Circuit Court in this behalf rendered, be REMANDED to the Circuit Court of Madison County with directions. And it is further considered by the Court, that the said Appellants, Granite Investment Company and James C. Green, recover of and from the said Appellees, cost by them in this behalf expended, and that they have execution therefor.” (Emphasis added.)

Thus, it is first required that the trial court consider certain costs to be recovered by Granite and Green. Secondly, the mandate required that the court follow the directions included in the opinion. Those directions included:

“[W]e do not feel that defendants are entitled to have had the services of the receiver at no cost to defendants. Rather, the fees and expenses of the receivership should be assessed out of the receivership property and the income derived therefrom; and we remand this cause to the circuit court to determine what amount should be properly assessed as expenses and fees of the receivership.” (42 Ill. App. 3d 697, 703.)

The direction of the opinion was that the receiver was to be compensated. The court did not remand the matter to determine whether or not FSLIC should receive a fee. Rather, it remanded to determine how large that fee should be. Illini and PSL filed a petition for rehearing pointing out that the opinion assumed that, during the receivership, payments had been made on the underlying obligations, whereas no such payments had been made. Also, Granite filed a petition for rehearing with the appellate court. Among other things, Granite alleged:

“That on the 19th day of August, 1976, Illini did assign all of the mortgages on the properties in question to the FSLIC and that on the 26th day of August, 1976, the FSLIC did file a mortgage foreclosure action in the Federal Court in and for the Southern District of Illinois at Springfield, Illinois, alleging that inasmuch as no mortgage payments had been made since March of 1972 (the receiver took over the properties in April of 1972), these mortgages were in default and it was foreclosing on same.”

Based upon Granite’s, as well as Illini’s, petitions for rehearing, the áppellate court filed a supplemental opinion on September 23, 1976. In denying the rehearing the court altered the original opinion as follows:

“Upon remand, the trial court should call for pleadings upon the issue of plaintiffs’ entitlement to receive from funds in the hands of the receiver the accrued, unpaid installments upon the contract for deed, and after a hearing, should determine the plaintiffs’ entitlement upon the merits of the question. The direction to the trial court to conduct a hearing on the fees and expenses of the receivership, as provided in the original opinion, stands.” (42 Ill. App. 3d 697, 704.)

While the supplemental opinion provided for a hearing on the plaintiffs’ entitlement to funds, it did nothing to alter the holding of the original opinion that FSLIC was entitled to be compensated for its services as receiver. In fact, the supplemental opinion specifically confirmed the holding of the original opinion in this regard. This affirmance of the holding of the original opinion that FSLIC was entitled to be compensated was made after Granite and Green, in their petition for rehearing, had called the court’s attention to the fact that FSLIC had acquired the mortgages from Illini.

On remand, Granite and Green raised several issues in the circuit court and again alleged that FSLIC had acquired the mortgages from Illini and requested that the court order FSLIC to reassign the mortgages to Illini. The circuit court, in construing the mandate of the appellate court, held that the relief prayed by Granite and Green was beyond the scope of the mandate and denied their prayer for relief. The appellate court, on appeal, sustained the circuit court’s holding that the relief sought was beyond the scope of the mandate as to most of the issues raised by Granite and Green. However, as to FSLIC’s entitlement to compensation for services, it reversed the trial court and held that this issue was within the purview of the mandate. The appellate court held that its previous mandate directing the circuit court to determine plaintiffs’ (PSL’s and Illini’s) entitlement to receive payments from the money held by the receiver and the receiver’s entitlement to expenses vested the circuit court with authority to determine Granite’s and Green’s claim against FSLIC. Also, since the alleged misconduct occurred after the filing of the previous opinion, the appellate court held that the circuit court had jurisdiction to consider this conduct.

We do not agree. We noted above that Granite and Green, in their petition for rehearing in the previous appeal, had called the court’s attention to the fact that FSLIC had acquired the mortgages from Illini. Granite and Green, in their petition for rehearing, did not ask for the same remedy for this alleged misconduct that they asked for when they raised the question in the trial court. However, the fact that FSLIC had acquired the mortgages from Illini was, nonetheless, made known to the appellate court before it modified its opinion on denial of rehearing and before its mandate issued. We quoted above the modification made by the appellate court by the supplemental opinion on denial of rehearing. The last sentence of that supplemental opinion concerning fees and expenses of the receiver bears repeating:

“The direction to the trial court to conduct a hearing on the fees and expenses of the receivership, as provided in the original opinion, stands.” (Emphasis added.) (42 Ill. App. 3d 697, 704.)

Since this language refers to the provisions of the original opinion concerning the fees and expenses of the receiver, the language of that opinion previously quoted also bears repeating:

“[W]e do not feel that defendants are entitled to have had the services of the receiver at no cost to defendants. Rather, the fees and expenses of the receivership should be assessed out of the receivership property and the income derived therefrom; and we remand this cause to the circuit court to determine what amount should he properly assessed as expenses and fees of the receivership.” (Emphasis added.) (42 Ill. App. 3d 697, 703.)

The case was therefore remanded to the circuit court, not to determine if the receiver is entitled to fees, but to determine the amount of those fees. This holding of the original opinion was reaffirmed by the appellate court in its supplemental opinion after Granite and Green, in their petition for rehearing, had pointed out FSLIC’s alleged misconduct. This holding of the appellate court in the original appeal established the law of the case on this question. This holding was binding on the circuit court on remand and was binding on the appellate court on appeal from the judgment of the circuit court entered on remand. This court has held:

“Where the Appellate Court on the first appeal to it, announces a particular view of the law governing the case and reverses and remands the case for further proceedings in accordance with the views announced, if the case is again brought before such court for review the former decision is binding on the court making it, and the questions decided and determined by it on the first appeal are not open for re-consideration on the second appeal.” (Zerulla v. Supreme Lodge Order of Mutual Protection (1906), 223 Ill. 518, 520.)

Also see Relph v. Board of Education (1981), 84 Ill. 2d 436.

There must be an end to litigation. This case appears to be interminable, and will certainly prove to be so if the various courts through which it passes consider and reconsider each question several times. The record in this case discloses that the numerous suits mentioned in this opinion do not constitute all of the litigation involving these parties growing out of the transactions mentioned herein. The record discloses that there were other cases pending in various circuit courts when this case was being heard on remand. The appellate court decided that the receiver was entitled to be paid fees and expenses. That should have ended the dispute on this question. Since the alleged misconduct of FSLIC was made known to the appellate court before it reaffirmed that holding, it cannot now be argued that these allegations of the receiver’s misconduct were not previously before the court, even though the allegations were contained only in the petition for rehearing. See Sherman v. Town of Jefferson (1917), 280 Ill. 206, 207.

Accordingly, we reverse that part of the judgment of the appellate court which ordered FSLIC, Illini and PSL to stay any action in regard to the 48 mortgages, including the prosecution of foreclosure proceedings, and to stay any attempt to transfer or assign the mortgages. We further reverse the order of the appellate court which directed that any attempted transfer of title by the receiver, FSLIC, or PSL or Illini be void and ineffective, and which ordered the defendants to cause a copy of the stay order to be recorded in the counties where the real estate involved is located to reverse the order of the appellate court ordering FSLIC to reconvey to Illini the 48 mortgages in question and ordering that FSLIC shall receive no fees and compensation for its services as receiver, and directing that the fees and compensation previously allowed be returned to the receiver’s account and paid toward the satisfaction of the mortgages. That part of the appellate court judgment affirming the order of the circuit court of Madison County is affirmed. The cause is remanded to the circuit court of Madison County to determine the status of the bankruptcy proceedings referred to herein. Any sum of money over and above the fees and expenses of the receiver, authorized to be paid, must be held by the court subject to the determination of the bankruptcy proceedings and the foreclosure proceedings pending in the Federal court.

Affirmed in part and reversed in part; cause remanded, with directions.