text:
    (No. 54017.
    THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Appellee, v. THE VILLAGE OF ROMEOVILLE, Appellant.

      Opinion filed September 30, 1981.

    Richard T. Buck and David L. Ruttle, of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellant.
    Allen S. Lavin, of Chicago (James B. Murray and Jack L. Shankman, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Will County entered a judgment on the pleadings upholding the validity of two 1899 ordinances; one adopted by the village of Romeoville (Village), the other by the Metropolitan Sanitary District of Greater Chicago (District). The court declared that, under the ordinances, the duty to maintain the Romeo Road Bridge (bridge) rested with the District. The appellate court declared the ordinances invalid, as being against public policy, and held the Village had a common law and statutory duty to maintain the bridge that predominated over the 1899 ordinances. 87 Ill. App. 3d 58.

The Sanitary District of Chicago was organized in 1890 under “An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois Rivers” (1889 act) approved May 29,1889 (Hurd’s Ill. Rev. Stat. 1899, ch. 24, par. 343). In 1899, the District was securing right-of-ways for its main channel along the Des Plaines and Illinois rivers to allow sanitary drainage to flow into those rivers rather than into Lake Michigan. (Lussem v. Sanitary District (1901), 192 Ill. 404, 413-15.) On May 3, 1899, the Village adopted an ordinance that provided that the District shall “construct and hereafter maintain” a swing bridge over its main channel of the waterway within the Village. The District enacted a companion ordinance on May 31, 1899, which incorporated the Village ordinance. The District then constructed the bridge and, since 1899, has maintained it.

On March 14, 1979, the District filed a complaint for declaratory judgment that would hold the ordinances invalid and that would require the Village to have a statutory obligation to assume ownership and maintenance of the bridge.

The underlying issue to be resolved is the validity of the ordinances wherein the District agreed to maintain the bridge.

At the time the ordinances were passed, the District was authorized to purchase, condemn or otherwise acquire land needed to widen or deepen the channel of any stream or river it used and to construct any bridges which may be required as a result. (Sections 8 and 17 of the 1889 act (Ill. Rev. Stat. 1979, ch. 42, pars. 327, 337).) At that time, the Village was authorized to enter into contracts. 1871-72 Ill. Laws 262-63. See Ill. Ann. Stat., ch. 24, par. 2 — 3—8 (Smith-Hurd 1962).

In 1901, after the effective date of the ordinances, the legislature passed “An Act extending the powers of sanitary districts organized under an act entitled ‘An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois Rivers’ ” (1901 act) (Ill. Rev. Stat. 1979, ch. 42, pars. 351 through 353). Section 3 of the 1901 act (Ill. Rev. Stat. 1979, ch. 42, par. 353) provides:

“Nothing herein contained shall be construed as depriving any city, village or town, situated wholly or partly within the limits of said sanitary district, of any power now exercised in the operation of said bridges; and any bridges built under the provisions of this act to supply or replace a public street or highway bridge, now or hereafter existing, shall, after the construction of said bridge, be operated and controlled for municipal purposes by said city, village or town within which it is located.”

The District asserts that the Village had a common law duty to maintain the bridge, which was subsequently codified in section 3 of the 1901 act. Under the District’s view, the ordinances divested the Village of ultimate maintenance responsibility and control, thereby violating public policy as embodied in the common law at the time of their enactment.

For support, the District relies on City of Chicago v. Sanitary District (1949), 404 Ill. 315, where a dispute arose between the city of Chicago and the District as to who was required to maintain six bridges located in the city of Chicago. The bridges were built by the District in the years 1899, 1910 (two bridges), 1926, 1927 and 1930. Although there was no agreement involved, the District had maintained the bridges for up to 43 years. A statute similar to section 3 of the 1901 act was involved, namely section 17 of the 1889 act, which was amended in 1915 to state:

“[I]f any such bridge 000 shall lie wholly within the territorial limits of any one municipality, then any such bridge oso shall on completion be turned over to the corporate authorities of any such municipality free of cost, and shall thereupon become the property of such municipality, and be maintained in good order for public travel by such municipality s“.” (1915 Ill. Laws 392-93.)

The parties agreed the statute operated prospectively, but the District argued that section 17 merely reflected an extension of the common law and, therefore, the city had an obligation to maintain all six bridges, including the three built before the 1915 amendment. The court agreed with the District and held that at common law the city was responsible for maintenance, repair and replacement of all six bridges. (404 Ill. 315, 323, 325.) Its rationale was:

“The public roadways spanning the sanitary district channels are an integral part of the public thoroughfares of the city. For this reason, the city has jurisdiction and control over public highway bridges. The right to exercise jurisdiction and control over the bridges is accompanied by the corresponding duty to maintain and repair the bridges.” 404 Ill. 315, 323.

The Village does not dispute that at common law, it was required to bear ultimate maintenance responsibility as well as control of the bridge. It argues, however, that neither the common law in effect at the time the ordinances were passed, nor section 3 of the subsequently enacted 1901 act, proscribes a municipality from contracting for the performance of maintenance. The Village contends the ordinances did not abdicate its ultimate maintenance responsibility and control of the bridge. Rather, according to the Village’s view, the ordinances were, in fact, a contract for the performance of maintenance by the District, a contract into which it had authority to enter (see 1871-72 Ill. Laws 262-63) and which was not in derogation of public policy as embodied in the common law at the time. The Village also argues that the agreement, here, for the performance of maintenance distinguishes this case from City of Chicago v. Sanitary District, where no such agreement existed.

City of Chicago v. Sanitary District made clear the common law rule that a municipality must bear the ultimate responsibility for the maintenance and repair of bridges constructed by the Sanitary District pursuant to the 1889 act. (See People ex rel. Smith v. Board of Supervisors (1924), 314 Ill. 256, 263; People ex rel. Speck v. Peeler (1919), 290 Ill. 451, 456-57; Kreigh v. City of Chicago (1877), 86 Ill. 407, 410-11; People ex rel. Kurtz v. Meyer (1928), 251 Ill. App. 475, 480.) Absent an agreement for the performance of maintenance, the Village would have a common law duty, through its employees, to perform maintenance on the bridge. However, neither City of Chicago v. Sanitary District nor the other cases prevents a municipality from entering into a contract with another for the performance of maintenance, so long as the contract does not attempt to divest the municipality of its ultimate responsibility for maintenance or control.

Similarly, section 3 of the 1901 act does not prohibit a municipality from entering into an agreement for the performance of maintenance. As was true with the 1915 amendment to section 17 of the 1889 act, the enactment of section 3 of the 1901 act merely codified the common law rule requiring a municipality to operate and control bridges constructed by the District. The statute, as does the common law, contemplates a prohibition against divestment of control and ultimate responsibility, but not against a maintenance contract.

The question then becomes whether the 1899 ordinances constituted a maintenance contract, or a relinquishment of responsibility for maintenance and control of the bridge. The ordinances simply provided that the District shall “construct and hereafter maintain a swing bridge over the Main Channel of the Sanitary District of Chicago °°°.” Nowhere in the ordinances was there any verbiage to the effect that the Village was divesting itself of its ultimate responsibility for maintenance of the bridge or its liability for failure to do so. Moreover, the District’s lack of jurisdiction or control is demonstrated by the fact that it could not destroy the bridge on its own volition. Indeed, no relinquishment of control by the Village is evident in the ordinances. We find that the ordinances did not attenuate the Village’s responsibility to see that maintenance is performed in order to make the thoroughfare convenient and safe for the public, nor did they lessen the Village’s control over the bridge. See People ex rel. City of Chicago v. Chicago City Ry. Co. (1926), 324 Ill. 618, 622; Kreigh v. City of Chicago (1877), 86 Ill. 407, 410.

We interpret the ordinances to be a contract entered into by the Village for performance of maintenance services as to the present bridge in return for the Village relinquishing its rights in the preexisting bridge and the land underlying the right-of-way necessary for the present bridge. The Village received the District’s promise to maintain the bridge in lieu of payment of just compensation to which the Village would have been entitled had the District proceeded under its power of eminent domain.

For the above-stated reasons, we find the 1899 ordinances are valid. Accordingly, the judgment of the appellate court is reversed and the judgment of the circuit court of Will County is affirmed.

Appellate court reversed; circuit court affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 53929.
    THE PEOPLE ex rel. DIRECTOR OF FINANCE, Appellee, v. YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SPRINGFIELD et al., Appellants.

      Opinion filed September 30, 1981.

      Barber, Hall, Segatto & Hoffee, of Springfield (Henry R. Barber, Carl O. Hoffee, and Richard C. Edwards, of counsel), for appellant Young Women’s Christian Association of Springfield.
    Tyrone C. Fahner, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Raymond L. Terrell and Robert B. Powers, Special Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The Director of Finance (hereafter the State), on behalf of the Capital Development Board (hereafter CDB), filed a petition on August 26, 1976, seeking to condemn, for construction of a “courts complex” building for the use of the Fourth District Appellate Court, Sangamon County Circuit Court and a law school or paralegal training program, an entire block in downtown Springfield, including improved property at the southeast corner of that block, belonging to the Young Women’s Christian Association of Springfield (YWCA). The State filed a November 1 motion in limine to prohibit the YWCA from introducing evidence of replacement or reconstruction costs relevant under the YWCA theory that the property was “special use” property entitled to unusual valuation rules. On November 3 the YWCA filed a traverse and motion to dismiss, denied September 7, 1977. Pursuant to our Rule 308 (58 Ill. 2d R. 308) the circuit court certified three valuation questions raised by the motion in limine, and those questions were decided by this court in People ex rel. Director of Finance v. YWCA (1979), 74 Ill. 2d 561. Following that decision, a jury trial was held and a judgment fixing total compensation to be paid the YWCA at $1,135,960 was entered. From this final judgment the YWCA appealed-and the case was transferred to this court pursuant to our Rule 302(b) (73 Ill. 2d R. 302(b)).

An appropriation for a courts complex was first made in 1974. The Governor, on November 6,1975, gave, as required by section 51 of the Civil Administrative Code of Illinois (Ill. Rev. Stat. 1975, ch. 127, par. 51), his consent to acquisition of the subject property. Discussions among potential users of the complex resulted in a December 1975 program statement containing the following certificate:

“As attested by the signatures affixed below, the undersigned agree that their facilities described in this document are sufficient in both quality and quantity to accommodate those activities scheduled to occupy them through calendar year 1980. The Capital Development Board affirms the reasonableness of the facilities planned for the activities projected.”

This certificate was signed by Judge J. Waldo Ackerman on behalf of the Sangamon County circuit court.

The only indication that members of the Sangamon County Board (hereafter county board) were aware of such discussions is a letter dated October 1, 1974, from the chairman of the county board, which stated:

“This letter will confirm sentiments expressed at a meeting held on September 27 between Judge James Craven, John Huther of the Board of Higher Education, Don Brown and Dave Rinker of the Capital Development Board.
You should be advised that the location of the square block surrounded by Fourth, Fifth, Capitol and Jackson meets with the approval of the Sangamon County Board as a site for the proposed Circuit Court-Appellate Court-Law School complex. The Sangamon County Board certainly looks with favor upon the project and hopes to work closely with your office and others to see the eventual fulfillment of the plan.
I will be pleased to meet with the Capital Development Board on October 10 and at other such times as you may feel appropriate.”

An internal CDB memo dated April 2, 1976, from Waler Ross, the then project manager, indicates that this initial contact was not followed by continued involvement of the county board:

“The relationship of the Sangamon County Board to this project is one which should have been foreseen at least a year and a half ago, and should have been a part of the public relations and programming effort which I referred to in Item 2 above. You state that Mr. Hess and I should be concerned with this situation. We are. However, you must realize that inasmuch as they have been ignored ever since the beginning of this project it is inopportune to go running to them after public meetings have been held, and ask them to suddenly become involved. Now that we have put ourselves in this position, it would appear to me that our best course would be to allow these public airings to subside a little and then approach them with the mechanics of the problem as being merely a part of the mandate which was given in the Appropriation, which provides for the construction of Circuit Court facilities.”

The memo concluded that Ross would suggest that the CDB architects “cool it” until the CDB could “get our own house in order.” The CDB passed a resolution on June 10, 1976, which read in part:

“WHEREAS, staff has advised that for the record in connection with condemnation proceedings it is recommended that the selection of such site be formally confirmed by resolution of the Board.
NOW, THEREFORE, BE IT RESOLVED, that the Capital Development Board of the State of Illinois hereby formally confirms the designation of the site for the Courts/Law School Complex, CDB Project No. 007 — 010—001, is the site bounded by 4th, 5th, Capitol, and Jackson Streets in the City of Springfield, Illinois, and hereby confirms the authority of the Board’s staff to acquire parcels of property within the boundaries of such site either by purchase or by condemnation and ratifies and confirms all acts of the Board’s staff heretofore taken to such end.”

The petition for condemnation, filed August 27, 1976, stated:

“3.That it is necessary that the Petitioner have and acquire the lands, rights or other property hereinafter described for a public use and purpose and that said lands, rights or other property are required for the public use and purpose of constructing and effecting public improvements on the same for the use and benefit of the State of Illinois, to wit: a Courts’ Complex for the Circuit Court and Appellate Court and the legal and paralegal public education.
4. That, under and by virtue of Article I of the Capital Development Act, approved October 11,1973, as amended (Chapter 127, Paragraphs 771 through 783, Illinois Revised Statutes, 1975), the Capital Development Board of the State of Illinois is engaged in the acquisition, construction and completion of the Courts’ Complex for the Circuit Court and Appellate Court and legal and paralegal education in Springfield, Sangamon County, Illinois, and that, for such purposes, has determined by resolution duly adopted on June 10,1976 that the lands, rights or other property hereinafter described, together with other lands, rights or property bounded by Fourth, Fifth, Capitol and Jackson Streets in the City of Springfield, County of Sangamon, State of Illinois, are necessary to be acquired for such public purposes.”

A September 7,1976, letter from the Sangamon County clerk indicates that, as of that date, no resolution affecting “in any way” the location of the Sangamon County circuit court had been passed by the county board. The YWCA traverse and motion to dismiss filed November 3, 1976, stated in part:

“11. Only the Sangamon County Board has the power and duty to select a site for, and build or lease, a courthouse for Sangamon County. (Ill. Rev. Stats., C. 34, Sec. 432). The Sangamon County Board has not selected the site in question for a courthouse or for the Circuit Court. In fact, the Sangamon County Circuit Court is now occupying modern air-conditioned facilities only about twelve years old, which facilities are being leased by the County from the Springfield Building Commission under a long term lease. There is no public necessity for the taking of defendant’s property. As yet, no one has conducted an in-depth study as to the need of Sangamon County for a new court facility. Petitioner is proposing to condemn property for, and to construct, a building for the Sangamon County Circuit Court without the authority or consent of the Sangamon County Board. Such court building, if constructed, may never be utilized for the purposes intended.”

On January 11,1977, a resolution, suggested in part by CDB staff members, was approved by the county board. It stated:

“WHEREAS, the State of Illinois Capital Development Board, hereinafter referred to as ‘CDB’, is in the process of developing a Courts and Legal Studies Complex, hereinafter referred to as ‘Complex’, from funds appropriated by the General Assembly of the State of Illinois;
* # #
WHEREAS, CDB has heretofore authorized the payment of funds to Special Assistant Attorney Generais, appointed by the Attorney General for the purpose of commencing condemnation proceedings with regard to such site;
o a «
WHEREAS, it is in the interest of the State of Illinois to establish a model circuit courtroom facility so as to improve the quality of justice in the State of Illinois;
WHEREAS, it has been determined that the use of that portion of the Complex for the Seventh Judicial Circuit Court, Sangamon County, Illinois, and related court services will be of benefit to the State of Illinois in connection with the providing of a model circuit court facility, CDB has stated that it will cause that portion of the Complex allocated to the Seventh Judicial Circuit Court, Sangamon County, Illinois, and related court services to be made available to Sangamon County on a long-term basis, wherein Sangamon County will pay for said use and occupancy only its pro rata share of operation and maintenance costs for that portion of the Complex devoted to Seventh Judicial Circuit Court, Sangamon County, Illinois facilities and related court services.
NOW, THEREFORE, BE IT RESOLVED that the Sangamon County Board concurs with the development of the project, and it is the judgment of the Board that, in the event such Complex is constructed and space allocated as shown in said Program Statement, it would be necessary and convenient to and in the best interest of Sangamon County to negotiate an agreement with the State of Illinois on the basis of the statement of CDB referred to hereinabove and to relocate its Seventh Circuit Court, Sangamon County, Illinois, facilities and related court services to the space provided for in said Program Statement to said Complex.”

Four witnesses testified for the State at the hearing on the motion to dismiss. Judge Roy O. Gulley, Administrative Director of the Dlinois Courts, testified concerning the Fourth District Appellate Court’s involvement in the project, noting in passing that the Sangamon County circuit court had a new, modern, air-conditioned courthouse building, one of the 20 or 25 newest circuit court facilities in the State.

Daniel Pramlet, a land-acquisition official for the CDB, testified that the CDB did believe that there had to be a consensus of the county board, although it did not believe that consensus need be in writing. The witness testified that there was neither a formal written agreement concerning the rent to be charged nor any county-board-approved program statement, although over 50$ of the complex’s “net square footage” would be used by the circuit court.

Jerry Hess, a planning supervisor for the CDB, testified that more than half of the usable floor space of the complex would be occupied by the circuit court. He stated that the CDB was not to determine need for the building in the first place, and had not done any study of the adequacy of the circuit court’s 12-year-old building, or of the court buildings throughout Illinois. After his work on the project, however, the witness had personally felt that the project would be beneficial to the State. The witness testified that, if the CDB had tried to construct the appellate court and legal education facilities separately from the circuit court facilities, “it [the project] wouldn’t have worked.”

Dasol Mashaka, the project manager for the CDB at the time of the hearing on the motion to dismiss, testified that the Sangamon County circuit court would be the single largest use of the building, approximately 50$, that the size of the tract required was directly related to the size of the building, and that the circuit court would make the greatest demand on parking facilities. The witness admitted that he had seen the absence of a use agreement with the county board as a potential barrier. A couple of weeks prior to the January 11,1977, county board meeting, he had participated in a discussion with county board members concerning what should be stated in the county board resolution. The witness also admitted making the following statements at the January 11 county board meeting:

“Now, I want to clarify one thing of how binding this is. What will happen is after we go ahead with condemnation proceedings, we’ll continue to plan the project. In the meantime in the next few months we’ll come back at a later time when we see about when this thing is going to start construction and possibly let the Board and the state agency that’s going to manage the building start working on an agreement. And, of course, at that time — now that’s when you can decide whether or not you want to go with the building or whether you agree with the kind of agreement that we have — we’re coming up with. This is not the final phase in terms of whether you go into the building. We still got to develop an agreement that we must all agree to in relationship to — before the building will naturally get built or will be completed.”

In stating that the CDB had not done a “needs study,” the witness made an isolated reference to the existence of one done by either the county board or the circuit court itself “independent of the project,” but neither that study, nor its conclusions, nor any information about it was introduced in evidence. After the witness had stated several times that the CDB did not make a study of need for the complex and that it does not make such determinations, the following exchange between the attorney for the State, Raymond Terrell, and his witness, took place:

“Then what planning went on with respect to allocating use, determining need on the part of the using agencies?
A. All that went on it— we did not make the study or develop any data relating to the need for the project that I am familiar with.
Q. Did you not ask the using agencies what their space requirements were?
A. Yes, we did.
Q. Is that not a— delving into or inquiring into need requirements of the using agencies, Mr. Mashaka?
MR. HOFFEE: I think Mr. Terrell is cross-examining his own witness at this point, and I would object to that.
* # ft
THE WITNESS: I’m answering this question different from the way I answered it from the previous question. We did ask— we did ask them to define what their needs were.
MR. TERRELL: All right.
THE COURT: All right.
MR. TERRELL: And did they respond to that request?
A. Yes, they did.
Q. And did CDB analyze those responses?
A. Yes, we did.
* # O
Q. So then let me ask you whether or not CDB has anything to do with respect to evaluating and determining necessity for and need for space?
«« «
THE COURT: Do you know what the— Do you understand the question?
A. THE WITNESS: Yeah, but there is one — there is one point in his question that if I answered yes or no I don’t think I’d— it would be correct.
MR. TERRELL: What is your answer, sir?
THE WITNESS: I’d say yes.
MR. TERRELL: All right, thank you.”

The witness also testified that the CDB “established” that those needs were “valid.”

Later the witness acknowledged that the CDB had not considered whether the building presently occupied by the circuit court adequately serves the needs of the circuit court:

«o*# yQU evaluated their requests for space within your building, isn’t that right?
A. Yes.
Q. Not as to whether or not they needed to move into your building?
A. Right.”

The witness believed that the State would agree to permit the circuit court to occupy the complex, in exchange for paying its pro rata share of costs, but that no final agreement could be made until the CDB had the final specifications for the complex.

The State has asked, without any objection by the YWCA, that judicial notice be taken of the fact that the State now has title to the entire block sought, with the exception of the YWCA property, consisting of roughly two lots in the southeast corner of the block. The fact that we do so does not imply that we regard our decision in this case as affecting in any way the already acquired title to the non-YWCA land. The YWCA asks this court to take judicial notice of the fact that the county board on April 14, 1981, passed a resolution stating:

“WHEREAS, Sangamon County services have been growing at a greater rate than it has useable office space; and,
WHEREAS, Sangamon County has been desirous of joining with the State of Illinois to incorporate our Court System with the proposed Court Complex funded by the State of Illinois; and,
WHEREAS, negotiations with the appropriate State officials has [sic] revealed that the State of Illinois is not willing to include Sangamon County in its complex.
THEREFORE, BE IT RESOLVED THIS 14TH DAY OF APRIL, 1981 THAT THE SANGAMON County Board through its Chairman approves the official withdrawal from the proposed State of Illinois Court Complex and that the Chairman is authorized to inform the appropriate State officials.”

The United States Supreme Court in United States v. Carmack (1947), 329 U.S. 230, 237-38, 91 L. Ed. 209, 215, 67 S. Ct. 252, 255, indicated that the power of eminent domain is itself the outgrowth of political necessity, quoting Mr. Justice Strong’s words in Kohl v. United States (1876), 91 U.S. 367, 371-72, 23 L. Ed. 449, 451:

“<#<*# n0 one doubts the existence in the State governments of the right of eminent domain, — a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the government, either mediately or immediately, and independent of the consideration whether they would escheat to the government in case of a failure of heirs. The right is the offspring of political necessity; and it is inseparable from sovereignty, unless denied to it by its fundamental law. * * ”

Article I, section 15, of our constitution (Ill. Const. 1970, art. I, § 15) provides:

“Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.”

This court stated of the corresponding provision of the 1870 Constitution in Department of Public Works & Buildings v. Ryan (1934), 357 Ill. 150, 154-55:

“The power to exercise eminent domain is inherent in the State. Section 13 of article 2 of our constitution does not confer such power but recognizes that such power is in the State. Section 13 is a restraint and limitation placed upon the exercise of this power as against the right of the private citizen except in those cases where public necessity requires the taking of private property for public use, and such property can then be taken only by the payment of just compensation. 000 The private property of the owner can only be taken against his will by strict conformity with the law granting the right of eminent domain. [Citation.] The legislature has the power to confer the right of eminent domain, but it is the province of the court to determine whether such grant of power has been made and whether it is exercised within the grant. [Citation.] The construction to be placed by the court upon any law purporting to authorize the taking of private property for public use is one of strict construction. [Citations.] The Department of Public Works and Buildings is merely a governmental agency of the State created by legislative act and has no power or authority beyond that conferred upon it by the legislature.”

The Director of Finance filed this case after an appropriation and the consent of the Governor as provided in section 51 of the Civil Administrative Code of Illinois (Ill. Rev. Stat. 1975, ch. 127, par. 51), which reads in part:

“The Director of Finance is authorized, with the consent in writing of the Governor, to acquire by private purchase, or by condemnation under the Eminent Domain Act, all other lands, buildings and grounds for which an appropriation may be made by the General Assembly.”

The legislature, of course, cannot, by delegating the power of eminent domain, dispense with constitutional requirements restricting its use, including the requirement of “necessity.” In a condemnation action at least four issues concerning necessity may be readily distinguished: (1) whether the declared public use is necessary, (2) whether some property of the general type being condemned is necessary to serve the declared public use, (3) whether the property condemned is necessary as opposed to neighboring or similar properties, and (4) whether it is necessary to acquire the subject property by eminent domain as opposed to voluntary sale or lease. In the present case we consider only the second issue.

The inquiry of Illinois courts into the existence of necessity in an eminent domain case is limited but crucial. As this court wrote in City of Chicago v. Vaccarro (1951), 408 Ill. 587, 597:

“The general rule is that where the legislature has delegated to a corporation the authority to exercise the power of eminent domain, the corporation has also the authority to decide on the necessity for exercising the right, and its decision will be conclusive in the absence of a clear abuse of the power granted. [Citations.] An abuse of such power, however, will not be tolerated, and if no necessity for its exercise exists, or if it appears that the quantity of the property sought to be taken is grossly in excess of the amount necessary for the public use, the court will not permit the land to be taken.”

See also United States v. Carmack (1946), 329 U.S. 230, 243-46, 91 L. Ed. 209, 218-20, 67 S. Ct. 252, 258-60.

In City of Chicago v. Lehmann (1914), 262 Ill. 468, 470-71, this court stated:

“The petition alleged that the lots were necessary for the public use specified, and that was a material allegation which was denied by the defendant. The question whether the sovereign power of eminent domain shall be conferred upon corporations or municipalities to appropriate private property for public use is legislative and not subject to interference by the courts [citation], but the question whether the particular property sought to be appropriated is necessary for the public use is for the courts. If the necessity does not exist the land cannot be taken, and the property owner would be without the protection to which he is entitled if the determination of a corporation, private or municipal, to take his property conclusively settled the necessity of the taking. If that were so, the law would not require any averment of necessity but only an allegation of intention to take the property. The owner of property may challenge the right to take it by denying the averment of necessity, and the issue so made is a preliminary one, to be decided by the court. [Citation.] Under every rule of pleading the burden was upon the petitioner to introduce such evidence as would prima facie, at least, prove the disputed averment. The essential preliminary requisite being the necessity for the appropriation of the land, and that fact being affirmed by the petitioner and denied by the defendant, the burden rested upon the petitioner to show the fact. That is not only in conformity with rules of pleading, but it has been established by the authorities and assumed in all cases in this court. [Citations.] In determining the issue the question of necessity is largely left to the determination of the corporation, but that determination is subject to the right of judicial review and revision for an abuse of the power, which will not be tolerated. If it appears that the quantity of the property sought to be taken is grossly in excess of the amount necessary for the public use the right to take it will be denied. 000 The court erred in finding the issue made in favor of the petitioner, with no evidence of a reasonable necessity, or any necessity whatever, to take the property for the public use.”

In Trustees of Schools v. First National Bank (1971), 49 Ill. 2d 408, this rule was reaffirmed and it was decided that a recitation of necessity contained in a resolution of the proper body would make out a prima facie case of necessity:

“Defendant is correct in his assertion that the burden of proof on the issue of necessity is upon the petitioner. (City of Chicago v. Lehmann, 262 Ill. 468.) However, where a resolution of the governing body which makes the finding of necessity is introduced into evidence a prima facie case is made. It is then the duty of the defendant to go forward with evidence in support of his contention that there was an abuse of discretion by the governing body. [Citations.] The Board of Education adopted a resolution determining that it was necessary for the best interests of the school district that this property be acquired. This resolution was introduced into evidence at the hearing on the traverse. It was then the duty of defendant to go forward with evidence in support of his contention that the taking was excessive.” (49 Ill. 2d 408, 414.)

It has also been held that an eminent domain petition is properly dismissed where no formal resolution embodying a finding of necessity had, on the date of filing of the petition, been adopted, even though a subsequently adopted resolution referred to action taken at an executive meeting of the responsible body prior to the filing of the petition. (Goldman v. Moore (1966), 35 Ill. 2d 450.) The court there emphasized the importance of the legislative finding of necessity:

“Although the statute does not specifically require formal action by the condemnor, such a requirement necessarily follows from the effect that is given to the condemnor’s determination of the necessity for the taking. ‘The question of the necessity for the land to be taken is left largely to the determination of the corporation, subject to judicial review and revision on abuse of the right, and where the court finds that the use for which the property is to be taken is a public one, it will not inquire into the amount of property necessary for such use, unless it appears that the quantity of property taken is grossly in excess of the amount necessary. [Citations.]’ [Citation.] It has been held that while a condemnor is not required to offer in evidence the ordinance or resolution under which it is proceeding, the property owner has the right to have it produced, and where none was forthcoming, the proceeding failed. City of Mound City v. Mason, 262 Ill. 392, 297; see also, City of Rockford v. Rockford Life Insurance Company, 16 Ill. 2d 287.
When the eminent domain petition in this case was filed, no formal action had been taken by the board with respect to the acquisition of the land in question. Until about nine months after the filing of the petition, no record existed by which any property owner or interested citizen could determine the position of the board with respect to the acquisition of the property in question. Whether in this case a specific evil resulted from this deficiency is beside the point. The procedure followed obviously lends itself to improper conduct on the part of public officials.” 35 Ill. 2d 450, 453-54.

The Sangamon County Board is by statute charged with the responsibility of providing a suitable courthouse for the Sangamon County circuit court. Section 26 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1975, ch. 34, par. 432) states:

“It shall be the duty of the county board of each county:
First — To erect or otherwise provide when necessary, and the finances of the county will justify it, and keep in repair, a suitable court house, jail and other necessary county buildings, and to provide proper rooms and offices for the accommodation of the county board, State’s attorney, county clerk, county treasurer, recorder and sheriff, and to provide suitable furniture therefor.
« « «
Sixth — To provide proper rooms and offices, and for the repair thereof, for the accommodation of the circuit court of the county and for the clerks for such court, and to provide suitable furnishings for such rooms and offices, and to furnish fire proof safes, and the repair thereof, for the offices of the clerks of the circuit court of .the county.”

The county board’s duty to provide a courthouse is imperative. (County of Mercer v. Wolff (1908), 237 Ill. 74; see also People ex rel. Goodman v. Wabash R.R. Co. (1946), 395 Ill. 2d 520.) In the present case it is clear that, as of the date of the filing of the petition to condemn, no formal determination of necessity had been made by the county board. Even the resolution passed January 11, 1977, over four months after the filing of this action, and over two months after the filing of the motion to dismiss, merely indicated an intent to negotiate an agreement with the State at some indefinite future date, not a finding that it was necessary that the circuit court be provided with new facilities. CDB employees’ testimony and the January 11 county board resolution indicated a hope of negotiating an agreement to lease the facility based on “pro rata” sharing of “costs,” but even the method of such calculation was indefinite. Although the county board resolution referred to the program statement certificate signed by a representaive of the circuit court, that certificate only indicated that the facilities described in the program statement would be sufficient for the projected activities of the circuit court through 1980, not that those new facilities would be needed in order to accommodate those activities.

Nor can the June 10, 1976, resolution of the CDB, to which the petition for condemnation referred, be considered a substitute for the county board’s finding of necessity. That resolution, taken together with the appropriation bill, the Governor’s consent, and section 51 of the Civil Administrative Code of Illinois, did authorize the filing of the petition. The constitutional requirement of necessity, however, is separate, and under section 26 that determination of necessity was to be made by the county board. Even if the CDB had been able, despite section 26, to make the determination of the needs of the circuit court, testimony of CDB officials indicates that no determination of the need for new circuit court facilities was ever undertaken by the CDB. We would not defer to a mere self-serving recitation of necessity in any event (People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347), but no recitation of necessity was even included in the CDB resolution.

Finally, the State attempts to rely on the appropriation itself as a finding of necessity. However, an appropriation bill must, under our constitution, be limited to the subject of appropriations, and not contain substantive law. (Benjamin v. Devon Bank (1977), 68 Ill. 2d 142, 148; People ex rel. Kirk v. Lindberg (1974), 59 Ill. 2d 38, 42.) If construed to be a mandate that it was necessary that the Sangamon County circuit court move to the courts’ complex, it would shift responsibility for housing the circuit courts of the State embodied in section 26, and to that extent would be a change in the substantive law, improperly included in an appropriation bill.

It should be noted, too, that, while governmental bodies have some discretion as to the amount of property to be taken for a public use, the courts must intervene if the amount taken is excessive. Future needs cannot excuse the taking of an excessive amount of property. In City of Chicago v. Vaccarro (1951), 408 Ill. 587, 598, this court stated that only needs of the public “which may be fairly anticipated in the future” may be considered. (See City of Waukegan v. Stanczak (1955), 6 Ill. 2d 594. See also Salt Lake County v. Ramoselli (Utah 1977), 567 P.2d 182; City of Helena v. DeWolf (1973), 162 Mont. 57, 508 P.2d 122; O’Neil v. Board of County Commissioners (1965), 3 Ohio St. 53, 209 N.E.2d 393; City of Phoenix v. McCullough (1975), 24 Ariz. App. 109, 114-15, 536 P.2d 230, 235-36.) If over half of the total area sought were being taken without any showing of need, present or future, it is apparent that the amount of property sought by the petition would be “grossly excessive” (City of Waukegan v. Stanczak (1955), 6 Ill. 2d 594, 604) and the entire petition invalid.

Testimony indicated that fully half of the land sought for the complex was to be used by the circuit court. Over 50% of the floor space and the greater part of the parking facilities were attributable to the circuit court. Since there was no legislative finding of necessity for the circuit court’s part of this complex, there was no finding to which a trial court would be required to defer that this half of the property sought was needed for a public use. In Chicago, Burlington & Quincy R.R. Co. v. Abens (1922), 306 Ill. 69, and in Chicago, Milwaukee & St. Paul R.R. Co. v. Franzen (1919) 287 Ill. 346, we held that certain regulatory consents were not conditions precedent to a condemnation action. In this case, the absence of a legislative finding of necessity would not be fatal if it were otherwise unequivocally established by this record that this property was necessary for Sangamon County circuit court use. The case turns on whether, lacking such legislative determination, the record contains such evidence to support the trial court’s implicit finding that necessity existed. (Trustees of Schools v. First National Bank (1971), 49 Ill. 2d 408.) Virtually the only information that the court had concerning the present Sangamon County circuit court facility was the fact that it was a 12-year-old air-conditioned building — among the newest of Illinois courthouses. Obviously it cannot be said that there was any substantial evidence of need for that portion of the property sought for the circuit court’s use, and the petition attempting to take the entire block should have been dismissed as an attempt to take a “grossly excessive” amount of land.

Defendant urges that we take judicial notice of the earlier quoted resolution of the county board, formally withdrawing from the project. This resolution was adopted by the county board on April 14,1981, while this appeal was pending. Article VI, section 4(a), of our constitution (Ill. Const. 1970, art. VI, §4(a)) provides: “(a) The Supreme Court may exercise original jurisdiction *** as may be necessary to the complete determination of any cause on review.” Section 2 of “An Act in relation to judicial notice” (Ill. Rev. Stat. 1979, ch. 51, par. 48b) states in part:

“§ 2. Courts of appellate jurisdiction. Upon the review by any court of appellate jurisdiction of a judgment or order of a circuit court the court of appellate jurisdiction shall take judicial notice of all matters of which the circuit court was required to take judicial notice, including all rules of practice adopted by the circuit court.”

Section 1 (Ill. Rev. Stat. 1979, ch. 51, par. 48a) provides:

“§ 1. Courts of original jurisdiction. Every court of original jurisdiction, in addition to the matters of which courts of original jurisdiction have heretofore been required to take judicial notice, shall take judicial notice of the following:
First. All general ordinances of every municipal corporation within the State.
Second. All ordinances of every county within the State.”

This court interpreted sections 1 and 2 in Scott v. Rockford (1979), 77 Ill. 2d 507, to require that this court take judicial notice of rules promulgated pursuant to municipal ordinance as well as certificates evidencing their publication. We believe that we should take judicial notice of the resolution. Although Blanchette v. Connecticut General Insurance Corporations (1974), 412 U.S. 102, 42 L. Ed. 2d 320, 95 S. Ct. 335, implies that under some circumstances a decision might be rendered by a reviewing court based upon facts which have changed from the situation in the trial court, we rely on the April 14,1981, resolution only to reassure us that no necessity for the condemnation of land for a new circuit court facility ever did exist. The April 14 resolution may well indicate that if the CDB had gone to the board and sought an explicit and definite resolution at the outset, the county board would have refused to adopt such a resolution.

Accordingly, the judgment of the circuit court of Sangamon County is reversed and this cause remanded with directions to dismiss the petition.

Reversed and remanded, with directions.


text:
    (No. 54419.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CECIL LEON HOBBS, Appellee.

      Opinion filed September 30, 1981.

    Tyrone C. Fahner, Attorney General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Garry W. Bryan, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Karen Munoz, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Cecil Leon Hobbs, was convicted in a Champaign County circuit court jury trial of theft with a prior theft conviction, a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)). His appeal to the appellate court resulted in an affirmance of the conviction, but a reversal of the extended-term sentence of 6 years which that court held to constitute an abuse of the sentencing judge’s discretion. (90 Ill. App. 3d 587.) We allowed the State’s petition for leave to appeal.

The property stolen was five bottles of whiskey which defendant and another took from an Eisner food store on September 16, 1979. Although the State’s evidence of nonpayment for the whiskey was largely circumstantial and, defendant contends, insufficient to establish his guilt beyond a reasonable doubt, we believe that issue was rightly resolved by the appellate court. Defendant also urges error occurred when the trial judge did not specifically offer him an opportunity to make a statement personally prior to the imposition of sentence as provided in section 5 — 4—1(a)(5) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(a)(5)). In this connection he notes, too, that the court was sufficiently displeased with defense counsel, who had apparently been significantly late in appearing for the sentencing hearing, that the judge indicated, at the conclusion of that hearing, his intention to request the State’s Attorney to file a petition asking that defense counsel be found in contempt and assign that matter to a different judge for hearing and disposition. In addition the judge stated: “And as far as I’m concerned, it’s up to the State’s Attorney and Judge Townsend to do whatever they wish to do about the matter. That it doesn’t and hasn’t affected this case, and will not affect other cases.” We do not understand defendant to argue that the 6-year sentence resulted from the judge’s displeasure with counsel but, rather, that in this circumstance defendant’s right of allocution assumed increased importance. We note, however, that counsel was present during the sentencing hearing and spoke at length on defendant’s behalf, and that defendant did not request an opportunity to speak. In these circumstances we agree with the appellate court opinions in this and other cases which have held similar omissions to be formal, but not reversible, errors. People v. Jones (1977), 56 Ill. App. 3d 600; People v. Darling (1977), 46 Ill. App. 3d 698; People v. Spiler (1975), 28 Ill. App. 3d 178.

Defendant had an unusual record of prior convictions, including both a misdemeanor theft conviction in April 1978 and a felony theft conviction in October of that year. Count I of the information in this case alleged the prior misdemeanor conviction, and count II the earlier felony conviction. While the court took judicial notice of both, the jury was informed of only the felony.

Defendant now urges that using the 1978 felony theft conviction to enhance the 1979 offense from the misdemeanor which it would otherwise have been to the felony which it is (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)), and again using it to extend the penalty (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)) is not consistent with the legislative intent. Section 16 — 1(e) provides in relevant part:

“(e) Sentence.
(1) Theft of property, other than a firearm, not from the person and not exceeding $150 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony.” (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e).)

A Class 4 felony is punishable by imprisonment for not less than 1 nor more than 3 years. (Ill. Rev. Stat. 1979, ch. 38, par 1005 — 8—1(a)(7).) The pertinent portion of section 5 — 5—3.2(b) is as follows:

“(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5 — 3.2(b).)

Section 5 — 8—2(a)(6), dealing with extended terms for Class 4 felonies, provides for a sentence of not less than 3 years nor more than 6 years.

The crux of this issue is that defendant’s conduct in taking the liquor, standing alone, was not a felony under Illinois law for the value of the liquor was less than $150. It became a felony only because defendant had a prior conviction for the same offense. Since the 1979 conduct itself was not a felony it does not appear to fit within the legislative intent manifested by section 5 — 5—3.2(b). We consider that an extended term could have been imposed if the 1979 offense, exclusive of any other, had constituted a felony, and the earlier conviction had been of a felony at least as egregious. An extended term would have been permissible here, if, for example, the value of the liquor taken in 1979 had exceeded $150 so as to make its taking a felony. But it did not, and its taking became a felony under section 16 — 1(e) solely by reason of the 1978 felony conviction. To again use that 1978 felony conviction to trigger the court’s authority to impose an extended term pursuant to section 5 — 5—3.2(b) is, in our judgment, incompatible with that section’s requirement that the charges must be “separately brought and tried and arise out of different series of acts.” The logical interpretation of that language indicates an intent to severely punish a recidivist convicted of separate felonies within 10 years where the latest offense consisted of conduct which itself constituted a felony. Here, the 1979 conduct was a simple misdemeanor until the earlier conviction was added by allegation and proof, and these circumstances, in our judgment, are simply not those at which section 5 — 5—3.2(b) is aimed. It is irrelevant that the 1978 misdemeanor theft conviction could also have served under section 16 — 1(e) to escalate the 1979 theft into a felony, leaving the 1978 felony theft conviction to be used to extend the sentence, for the jury was instructed only as to the prior felony conviction and its verdict was based thereon.

Our holding here is in accord with People v. Haron (1981), 85 Ill. 2d 261, decided last term, where we rejected the State’s argument that the legislature intended that use of a weapon in a battery should doubly enhance the offense into armed violence. Too, our holdings in Harón and here are reinforced by the rule referred to in Harón that any ambiguity in a criminal statute should be resolved in favor of lenity.

We accordingly conclude, although not for the reasons stated by the appellate court, that the circuit court erred in imposing an extended term sentence. We accordingly vacate the judgment of the appellate court and remand the cause to the circuit court for resentencing by the trial judge.

Vacated and remanded.


author: MR. JUSTICE MORAN

text:
    (No. 54745.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DANNY JOE McCARTY, Appellee.

      Opinion filed September 30, 1981.

      Tyrone C. Fahner, Attorney General, and J. William Roberts, State’s Attorney, both of Springfield (Robert J. Biderman and David E. Mannchen, of the State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Michael B. Metnick, of Costello, Young 8c Metnick, of Springfield, for appellee.

      Edward B. Arnolds and Gus P. Giannis, of Chicago (Michael P. Seng, of counsel), for amici curiae James Phelan and Brian Bowes.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The defendant, Danny Joe McCarty, was indicted by the grand jury of Sangamon County for the unlawful delivery of less than 30 grams of a substance containing cocaine in violation of section 401(b) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1979, ch. 56/2, par. 1401(b)). Prior to trial he filed a motion to dismiss the indictment alleging that the classification of cocaine as a Schedule II “narcotic drug” under section 401(b) of the Act was unconstitutional. The motion was denied. A jury found the defendant guilty as charged, and the trial court sentenced him to 3 years’ imprisonment. On appeal, the appellate court found that because cocaine is neither pharmacologically nor scientifically a narcotic, its classification as such under the Act denied defendant his constitutional right to equal protection under the law. As a result the court reduced the conviction from a Class 2 felony to a Class 3 felony and remanded the cause to the trial court for resentencing. (93 Ill. App. 3d 898.) The State appeals under Supreme Court Rule 317 (73 Ill. 2d R. 317).

The State contends that there is a rational basis for the present classification of cocaine as a “narcotic drug.” The defendant does not generally challenge the inclusion of cocaine in Schedule II of the Act, but, rather, claims that its designation as a narcotic therein is capricious, arbitrary and without a rational basis, thereby denying him of his right to equal protection.

The legislative purpose of the Act is set out in section 100:

“It is the intent of the General Assembly, recognizing the rising incidence in the abuse of drugs and other dangerous substances and its resultant damage to the peace, health, and welfare of the citizens of Illinois, to provide a system of control over the distribution and use of controlled substances which will more effectively: 000 (3) penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society; (4) acknowledge the functional and consequential differences between the various types of controlled substances and provide for correspondingly different degrees of control over each of the various types; (5) unify where feasible and codify the efforts of this state to conform with the regulatory systems of the Federal government and other states to establish national coordination of efforts to control the abuse of controlled substances * • V’ (Ill. Rev. Stat. 1979, ch. 56K, par. 1100.)

The Act divides controlled substances into five schedules based on a descending order of potential for abuse. Substances within Schedule I have the highest potential for abuse and, therefore, call for the most severe penalties, whereas Schedule V substances have the lowest potential for abuse and correspondingly call for less severe penalties. Only Schedule II is involved in this appeal. Section 401 specifies the penalties for the manufacture or delivery of a controlled substance:

“Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this Section with respect to:
(b) any other amount of a controlled substance [other than those amounts specified in section 401(a), Le., less than 30 grams of any substance containing cocaine] classified in Schedules I or II which is a narcotic drug is guilty of a Class 2 felony. The fine for violation of this subsection (b) shall not be more than $25,000;
(c) any other amount of a controlled substance classified in Schedule I or II which is not a narcotic drug is guilty of a Class 3 felony. The fine for violation of this subsection (c) shall not be more than $20,000.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 56/2, pars. 1401(b), (c).)

The term “narcotic drug” is specifically defined in section 102 of the Act to include opium and opiate derivates as well as “coca leaves and any salts, compound, derivative, or preparation of coca leaves 000 but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.” Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1102(aa)(4).

At the pretrial hearing on defendant’s motion to dismiss, the State presented no witness in opposition to the motion. Defendant presented the testimony of two expert witnesses, Dr. Joel Fort, a physician with expertise in the field of drug use and abuse, and Dr. Ronald Siegal, a psychopharmacologist and a psychologist. Both experts testified as follows. The “consensus of medical opinion” is that cocaine is not a narcotic. The characteristics of narcotic drugs are that they (1) botanically, are related to the opium poppy; (2) pharmacologically, are psychoactive depressants; (3) physiologically, are addicting, that is, they produce tolerance and withdrawal. Tolerance means that with continued use the body will require a larger amount of the drug to produce the same effect. When the drug is withdrawn from the user a “withdrawal syndrome” will occur with a variety of unpleasant symptoms.

Cocaine is not related to the opium poppy but is a substance derived from coca leaves. Unlike the narcotics which are depressants, cocaine is a central nervous system stimulant. Its short-term physiological effects include increase in heart rate and blood pressure and eye pupil dilation. To the user it produces a euphoric state and reduces fatigue and hunger. It is not physically addictive in that it does not produce tolerance or withdrawal. Both experts were of the opinion that it does not cause hallucinations or psychosis but may cause a perceptual disorder in which a user experiences the sensation of insects crawling in or on the skin. Both experts agreed that cocaine can be psychologically addictive but felt that such dependency is seen in only 1% of users labeled “compulsive.”

Cocaine is taken into the body by most users nasally by “snorting” or “sniffing.” A small percentage of users (1%) inject cocaine intravenously. Both experts were of the opinion that cocaine is not generally harmful in that it is quickly and cleanly eliminated from the body. Nasal ingestion may, however, cause chronic nasal irritation, which can result in the perforation of the nasal septum. Other common side effects are irritability, insomnia and weight loss. Death can occur from a large overdose but is rare in recreational use. Cocaine has a recognized medical use as a local anesthetic.

Although both experts were of the opinion that cocaine has no causal connection to criminal behavior, both conceded that criminal activity, including violent crime, is associated with the illegal trafficking of cocaine. Dr. Fort testified that there is some divergence of opinion among experts, especially between human researchers and animal researchers, as to the dangerousness of cocaine to users. Although both experts were of the opinion that the danger of cocaine had been exaggerated, neither felt that the drug was harmless or advocated its legalization.

The defendant argues that the classification of cocaine as a Schedule II narcotic drug is invalid because it is an undisputed fact that cocaine is not medically or pharmacologically a narcotic. The defendant asks this court to reclassify cocaine as a nonnarcotic Schedule II controlled substance. The delivery of these nonnarcotic substances may be punished as a Class 3 felony (a penalty of 2 to 5 years’ imprisonment), as opposed to cocaine’s present status as a Class 2 felony (a 3 to 7 years’ penalty). The State contends that the medical and pharmacological definition of cocaine is not binding upon a legislative body. Moreover, the State argues that the classification of cocaine as a narcotic has a rational basis.

People v. McCabe (1971), 49 Ill. 2d 338, 340-41, set out the general rules for an equal protection challenge to a legislative classification:

“In determining whether a statutory classification violates the equal-protection clause, we must begin with the presumption that the classification is valid and must impose the burden of showing invalidity on the party challenging the classification. [Citations.] The equal-protection clause does not deny the States the power to classify in the exercise of their police power and it recognizes the existence of a broad latitude and discretion in classifying. [Citation.] If any state of facts may reasonably be conceived which would justify the classification, it must be upheld [citation]. The right of judicial questioning of a classification under the equal-protection clause is thus limited. As this court put it in Thillens, Inc. v. Morey, 11 Ill. 2d 579, 593, ‘Whether the enactment is wise or unwise; whether it is based on sound economic theory; whether it is the best means to achieve the desired results, and whether the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the honest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.’ ”

We observe initially that section 102 of the Act (Ill. Rev. Stat. 1979, ch. 56/2, par. 1102) lists and defines terms used in the Act. The term “narcotic drug” is specifically defined as including substances derived from coca leaves except those not containing cocaine or ecgonine. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1102(aa).) The legislature did not assume a commonly recognized meaning of the term or adopt a definition in use in scientific or medical associations. Moreover, a legislative body is not legally bound to follow previously existing definitions of terms created by persons in other fields. This is the precise reason for extensive definition of terms in an Act — to clearly delineate the exact substances proscribed. Such legislative definitions commonly create a narrower or broader meaning of terms for the purposes of the statute than would other definitions commonly used. This concept has been expressed repeatedly by other jurisdictions in a similar context. State v. Erickson (Alaska 1978), 574 P.2d 1, 15; State v. Stitt (1979), 24 Wash. App. 260, 262, 600 P.2d 671, 672; People v. Billi (Sup. Ct. 1977), 90 Misc. 2d 568, 395 N.Y.S.2d 353, 356.

Because of the legislature’s power to redefine terms, one of defendant’s basic premises is refuted. Defendant assumes that if the legislature had been aware of cocaine’s medical and pharmacological properties as a nonnarcotic, its delivery would not have been classified as a Class 2 felony but, rather, would have been punished with the Schedule II nonnarcotic substances as a Class 3 felony. We do not believe this to be the case. Moreover, irrespective of cocaine’s classification as a narcotic or nonnarcotic, the legislature has the power to proscribe its delivery in exactly the way it is presently proscribed. See People v. Davis (1979), 92 Cal. App. 3d 250, 259-60, 154 Cal. Rptr. 817, 822.

Our next inquiry is whether there is a rational basis in classifying cocaine with the opiates instead of with the amphetamines and barbiturates (Schedule II nonnarcotic substances). The State presents a number of justifications for the classification.

First, the State argues that the enormous profit from illegal cocaine traffic has led to a great deal of crime, including violent crime, as major importers and dealers compete with each other. Although defendant’s experts agreed with this contention, defendant argues that this fact is insufficient to justify the treatment of cocaine as a narcotic.

Cocaine and heroin are by far the most expensive and most profitable of the illicit drugs. As such, both heavily attract the criminal element of society. One kilogram of cocaine may cost a wholesaler from $12,000 to $20,000 but has a street value of over a million dollars. (Woods, The Psychopharmacology of Cocaine, 1 Drug Use in America, Problems in Perspective 116,129-30 (1973).) Moreover, the use of cocaine has increased at an alarming rate as the drug has become regarded by users as the “high status drug.” (Peterson, Statement before the Select Committee on Narcotics Abuse and Control of the House of Representatives on Cocaine 1 (1979).) It must be noted that one of the primary purposes of the Act is to “penalize most heavily the illicit traffickers or profiteers of controlled substances.” (Ill. Rev. Stat. 1979, ch. 56%, par. 1100.) The State urges that these facts provide a rational basis for treating cocaine more severely than substances in Schedule II which are pharmacologically classified as nonnarcotic.

Second, the State points to the strong correlation between the use of cocaine and the use of heroin and the opiates as a rational basis for the classification. Drs. Fort and Siegel estimated that only 1% of cocaine users also use heroin. However, other studies have reported that 50% of cocaine users also regularly use heroin and that 84% of all heroin users also use cocaine. (Woods, The Psychopharmacology of Cocaine, 1 Drug Use in America, Problems in Perspective 116,130 (1973).) Another study in 1977 reported that more than half of narcotic overdose deaths involved cocaine. (Welti, Death Caused by Recreational Cocaine Use, 24 J.A.M.A. 2519 (1979).) Although there is a great disparity in the opinions of experts as to the relationship between the use of heroin and the use of cocaine, some percentage of crossover is apparent.

Third, the State points to the potential for harm inherent in the illegal use of cocaine as providing a rational basis for its classification as a narcotic for penalty purposes.

Defendant’s experts admit that there is a great divergence of opinion among experts on the potential for harm inherent in the use of cocaine. Animal studies are cited by the State which indicate that the use of cocaine causes a high degree of psychological dependence and tolerance. (Deneau, Self Administration of Psychoactive Substances by the Monkey, a Measure of Psychological Dependence, 16 Pharamcologia 30-48 (1969); Matsuzaki, Effects of Cocaine on the Electrical Activity of the Brain and Cardiorespiratory Functions and the Development of Tolerance in the Central Nervous System, in S.J. Mule, Cocaine: Chemical, Biological, Clinical, Social and Treatment Aspects 149-162 (1976); Post, Clinical Aspects of Cocaine: Assessment of Acute and Chronic Effects in Animals and Man,” in S.J. Mule, Cocaine: Chemical, Biological, Clinical, Social and Treatment Aspects 203 (1976).) Other studies involving humans are cited by the State to show that the use of cocaine may cause depression, nervousness, fatigue, sleepiness, hunger, hallucinations, psychosis, psychological dependence and even death. The 1979 issue of the Journal of the American Medical Association states:

“This report again demonstrates that cocaine cannot be regarded as a safe recreational drug despite current belief and legal controversy.” Welti, Death Caused by Recreational Cocaine Use, 24 J.A.M.A. 2519, 2522 (1979).

The State also points to the danger inherent in the increase in the practice of smoking coca paste or freebase cocaine. Coca paste is an extraction product made during the manufacture of cocaine from the leaves of the coca bush. The leaves are mashed, and alkali, kerosene and sulfuric acid are added. The white paste is usually sprinkled on tobacco or marijuana and is smoked. Smoking this high potency cocaine sulfate is the equivalent of intravenous injection. Reportedly, such use frequently results in an obsession with coca paste smoking, the appearance of psychotic reactions and paranoid states. (Cohen, Coca Paste and Freebase: New Fashions in Cocaine Use, 9 Drug Abuse and Alcoholism Newsletter, No. 3 (1980).) Freebase cocaine is ordinarily made by the user by dissolving the impure cocaine powder in water, adding a strong alkali and extracting the basic cocaine with a volatile solvent. These caustic and volatile chemicals frequently cause home accidents. When this “freebase” is smoked, it reportedly evokes an enormous desire to keep “basing.” The effect is identical to intravenous use. “Manic, paranoid or depressive psychosis have been seen. Overdoses can cause death due to cardiorespiratory arrest.” Cohen, Coca Paste and Freebase: New Fashions in Cocaine Use, 9 Drug Abuse and Alcoholism Newsletter, No. 3 (1980). See Jeri, The Syndrome of Coca Paste, 10 (4) Journal of Psychedelic Drugs 361 (1978); Daltry, Freebase: Can You Smoke Cocaine Without Getting Burnt?, Grassroots Stimulants 7 (1980).

The State additionally argues that the ongoing dispute in the scientific and medical community as to the potential harm inherent in the use of cocaine and the abundance of unresolved questions concerning the effect of cocaine on humans provide a rational basis for its present statutory classification.

We conclude that the reasons presented by the State provide a rational basis to validate the legislature’s judgment to classify cocaine with “true” narcotic substances for the purpose of penalty.

We are mindful of the fact that section 100 of the Act has as one of its stated purposes to “unify where feasible and codify the efforts of this state to conform with the regulatory systems of the Federal government and other states to establish national coordination of efforts to control the abuse of controlled substances.” (Ill. Rev. Stat. 1979, ch. 56/á, par. 1100.) Under the Federal Controlled Substances Act (21 U.S.C. §801 et seq.), cocaine is listed as a narcotic drug, along with the opiates, for penalty purposes. It is also treated as a “narcotic drug” by the Uniform Narcotic Drug Act, which has been adopted by the great majority of State legislatures. Moreover, our research has revealed that all courts which have dealt with the identical issue, with the exception of one trial court in the State of Michigan, have upheld the classification of cocaine as a “narcotic” for penalty purposes. State v. Bonanno (La. 1980), 384 So. 2d 355; People v. Davis (1979), 92 Cal. App. 3d 250, 154 Cal. Rptr. 817; State v. Stitt (1979), 24 Wash. App. 260, 600 P.2d 671; State v. Vernon (Minn. 1979), 283 N.W.2d 516; State v. Erickson (Alaska 1978), 574 P.2d 1; People v. Billi (Sup. Ct. 1977) , 90 Misc. 2d 568, 395 N.Y.S.2d 353; Canal Zone v. Davis (5th Cir. 1979), 592 F.2d 887; United States v. Stieren (8th Cir. 1979), 608 F.2d 1135; United States v. Vila (2d Cir. 1979), 599 F.2d 21, cert. denied (1979), 444 U.S. 837, 62 L. Ed. 2d 48, 100 S. Ct. 73; United States v. Solow (5th Cir. 1978) , 574 F.2d 1318; United States v. Lane (10th Cir. 1978), 574 F.2d 1019; United States v. Wheaton (1st Cir. 1977), 557 F.2d 275; United States v. McCormick (4th Cir. 1977), 565 F.2d 286; United States v. Lustig (9th Cir. 1977), 555 F.2d 737, cert. denied (1978), 434 U.S. 1045, 54 L. Ed. 2d 795, 98 S. Ct. 889; United States v. Marshall (9th Cir. 1976), 532 F.2d 1279, 1287-88; United States v. Harper (9th Cir. 1976), 530 F.2d 828, cert. denied (1976), 429 U.S. 820, 50 L. Ed. 2d 80, 97 S. Ct. 66; United States v. Foss (1st Cir. 1974), 501 F.2d 522, 530; United States v. Smaldone (10th Cir. 1973), 484 F.2d 311, 319-20, cert. denied (1974), 415 U.S. 915, 39 L. Ed. 2d 469, 94 S. Ct. 1411; United States v. Umentum (E.D. Wis. 1975), 401 F. Supp. 746, 748, aff'd (7th Cir. 1976), 547 F.2d 987, cert. denied (1977), 430 U.S. 983, 52 L. Ed. 2d 376, 97 S. Ct. 1677; United States v. Brookins (D.N.J. 1974), 383 F. Supp. 1212, 1213-17, aff'd (3d Cir. 1975), 524 F.2d 1404. Contra People v. Harman, No. 79—2584FY (44th Cir. Mich. April 20, 1981).

The defendant argues that this court’s decision in People v. McCabe (1971), 49 Ill. 2d 338, requires that the cocaine classification be declared unconstitutional as a violation of his right to equal protection. In McCabe, this court held that the inclusion of marijuana under the Narcotic Drug Act rather than under the Drug Abuse Control Act was a deprivation of due process and equal protection. There, a defendant’s first conviction for the sale of marijuana was punishable under the Narcotic Drug Act by a mandatory 10-year minimum sentence without the possibility of probation. Drugs named in the Drug Abuse Control Act, which had properties similar to that of marijuana, subjected a first-time offender convicted of the sale of such drugs to a maximum jail term of one year. Probation was also available. Of significance is the fact that, while the defendant’s conviction was pending on appeal, the legislature removed marijuana from the Narcotic Drug Act and reclassified it under the newly enacted Cannabis Control Act. As a result of the latter, only minor criminal penalties were imposed upon a defendant first convicted of the sale of marijuana. In light of these facts, the court ruled that the gross disparity between the penalties violated the defendant’s rights under the equal protection clause.

However, in the present case, no gross disparity of penalty is present nor has the legislature made any attempt to reclassify cocaine or to reduce the penalties attached thereto. A person found guilty of delivery of a small amount of a Schedule II narcotic drug under section 401(b) of the Act is subject to a penalty of 3 to 7 years’ imprisonment, whereas a person found guilty of the delivery of a small amount of a Schedule II nonnarcotic drug is subject to a penalty of 2 to 5 years’ imprisonment. We therefore find McCabe distinguishable from the present case.

For the reasons stated, we reverse the judgment of the appellate court and affirm the judgment of the circuit court of Sangamon County.

Appellate court reversed; circuit court affirmed.