author: TRAPP, P. J.

text:
    Society of the Divine Word, an Illinois Not-for-Profit Corporation, and Missionary Sisters Servants of the Holy Spirit, an Illinois Not-for-Profit Corporation, et al., Plaintiffs-Appellees, v. County of Cook, a Body Politic and Corporate, et al., Defendants-Appellants.
    Gen. No. 53,193.
    First District.
    March 21, 1969.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Dean H. Bilton, Charles A. Berke, and Ronald Butler, Assistant State’s Attorneys, and Edward J. Hladis, Chief of Civil Division, of counsel), Klein, Thorpe, Kasson & Jenkins, and Frederick O. Floberg, of Chicago-, for appellants.
    Walter P. Murphy, Eugene Dooner Murphy, Francis L. Zimmermann, Martin, Craig, Chester & Sonnenschein, Sydney G. Craig, Lyle L. Richmond, of Chicago, and Robert J. Mangier, of Wilmette, for appellees.
   TRAPP, P. J.

Defendant, Cook County, and intervening defendants appeal from a judgment of the Circuit Court of Cook County declaring the Cook County Zoning Ordinance unconstitutional to the extent that it prohibits use of plaintiffs’ property for a sanitary landfill. The judgment enjoins interference with the use of plaintiffs’ property as a landfill and orders the defendant county to issue any necessary license and permits for the work in conformity with the judgment and in conformity with the regulations of the county. The plaintiffs are Society of the Divine Word and Missionary Sisters, Servants of the Holy Spirit, each an Illinois not-for-profit corporation, which own the land in question. Intervening plaintiffs are the Villages of Winnetka, Kenilworth, Wilmette, Glencoe and the City of Evanston, each of which intervening plaintiffs desire the subject property to be used for a sanitary landfill. Intervening defendants are the Villages of North-brook and Glenview. They desire the proposed use to be prohibited on the plaintiffs’ property.

Defendants contend that the Villages of Glenview and Northbrook have a right to enforce the Illinois nuisance statute to prevent the proposed use, and a right to be protected by the county zoning ordinance. They also contend that the prohibition of a sanitary landfill by the county zoning ordinance is a reasonable regulation and that the trial court committed errors, especially in regard to the admission of evidence.

We shall first consider the applicability of the Illinois nuisance statute to the situation for the reason that if it is applicable to forbid the proposed use of the subject property, it would be an effective justification of the action of the county in denying a permit for the proposed use and would give persons affected by the nuisance a right to have the statute enforced. Such, in either case, would effectively prevent the proposed use of the property for a sanitary landfill. If the nuisance statute does not apply, we are remitted to the question of the validity of the zoning regulation.

The nuisance statute relied upon is 111 Rev Stats 1965, c 100%, § 27, as follows:

“27. Dumping garbage. It is unlawful for any person to dump or place any garbage or other offensive substance within the corporate limits of any city, village or incorporated town other than (1) the city, village or incorporated town within the corporate limits of which, such garbage or other offensive substance shall have originated, or (2) a city, village or incorporated town which has contracted with the city, village or incorporated town within which the garbage has originated, for the joint collection and disposal of garbage; nor shall any such garbage or other offensive substance be dumped or placed within a distance of one mile of the corporate limits of any other city, village or incorporated town
“Any person violating any provisions of this section is guilty of a misdemeanor. . . .”

The substance of the above provision was a part of the Criminal Code which was added to other nuisance prohibitions of the Criminal Code in 1933 (Laws of 1933, p 475). In 1963, it was transferred to the Illinois nuisance statute, c 100%, Ill Rev Stats.

Also in 1963 the legislature adopted “An Act to prohibit open garbage dumps or sites,” (Ill Rev Stats, c 111%, § 461). It provided:

“No person shall operate or cause to be operated an open dump or site for the placing, depositing or dumping of garbage. Any such dump or site in existence on the effective date of this Act shall be completely covered with earth within one year after the effective date of this Act.
“This Act shall not apply to< the sanitary landfill and incinerator methods of garbage disposal.” (Emphasis supplied.)

In 1965 the legislature adopted “An Act in relation to the registration and regulation of refuse disposal sites and facilities, etc.” (Ill Rev Stats, c 111%, § 471 et seq.) This Act required the Department of Public Health to prescribe minimum standards for the location, design, construction, sanitation, operation and maintenance of disposal sites and facilities. Refuse was defined to include garbage. It applied to operation of sites by both private individuals and governmental bodies and it required registering all sites with the Department of Public Health. The Act did not apply to counties which had established a county department of public health and provided for exemption certificates for governmental bodies which had regulations meeting minimum standards of refuse disposal provided by the State Department of Public Health.

The testimony of Matthew D. R. Riddell, registered professional engineer and practicing sanitary engineer for twenty years, that the sanitary landfill method of disposal was pioneered by New York City and Fresno, California, in the 1930’s clearly indicates that this method is of relatively recent origin. In a statute regarding open dumps, adopted in 1963 (c 111%, § 461, Ill Rev Stats), the legislature made sanitary landfills and incinerators an exception by express statement. Since the statute prohibits open dumps everywhere, it is a legislative recognition of the fact that a sanitary landfill is a different thing and is not objectionable. . The use of the word “sanitary” by the legislature in connection with the word landfill clearly indicates a legislative recognition that a landfill which includes garbage or other material also properly subject to incineration, is not a nuisance.

By reason of the recent origin of the sanitary landfill method of disposal and by reason of the subsequent legislative recognition of the same as unobjectionable, we cannot conclude that section 27 of the Illinois nuisance statute (c 100%, Ill Rev Stats) was or is intended to apply to a sanitary landfill. While it does not specifically mention sanitary landfills as such, the comprehensive statute of 1965, placing regulation of disposal sites and facilities under the jurisdiction of the Department of Public Health of Illinois (Ill Rev Stats, c 111%, §§ 471-476), is a further legislative recognition of the fact that the character of the operation rather than its specific location delineates the guideline of public tolerability.

We cannot subscribe to defendants’ theory that the composite reading of the various statutes now converts a statute (§27, c 100*4), which was directed against “dumping garbage” within one mile of a city in which the garbage did not originate, to a combined statute which forbids “open” dumping of garbage anywhere (111 Rev Stats, c 111%, § 461) and forbids a sanitary landfill within one mile of a city in which the landfill material did not originate.

Defendants argue that legislation introduced at the 1965 and 1967 sessions of the General Assembly to exempt sanitary landfills from the Illinois Nuisance Statute failed to pass and that there is thus a showing of legislative intent that sanitary landfills are within the prohibition of the nuisance statute and should be kept there. In re Estate of Miller, 35 Ill App2d 349, on 352, 182 NE2d 913, does attribute some significance to the fact that legislation, which would clearly have changed the law in reference to distribution of assets of an estate to heirs living in a communist dominated country, was tabled. It was said to strengthen the court’s view that there was no existing legislation on the subject. In Ambassador East, Inc. v. City of Chicago, 399 Ill 359, 77 NE2d 803, a statute excluded “hotels” from a rent control regulation and the court held that the fact that the Senate Committee had reported against distinguishing transient hotels from residential hotels was strong evidence that failure to adopt an amendment making a distinction evidenced an intent to include hotels of all types in the exception. Plaintiffs, on the other hand, cite Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785, to the effect that a failure to amend a statute is hardly conclusive of the intention of the legislature at the time of the adoption of the act. They also cite Order of Railway Conductors v. Swan, 329 US 520, 91 L Ed 471, to the effect that where no hearings were held or reports made, the failure of Congress to amend a statute is without meaning for the purpose of statutory interpretation. We note that all three bills which were introduced were entitled, “For an act to amend Section 221a of ‘An Act to revise the law in relation to criminal jurisprudence,’ ” which section was not in the Criminal Code at'the time of introduction of the bills. Additionally, in the view taken of the original inapplicability of section 27 of chapter 100% to sanitary landfills, the amendment would have been meaningless and should have failed to pass for that reason. It is also possible that the legislature felt that the subject was covered by the second paragraph of section 461, chapter 111% above quoted.

Defendants cite Mills v. Village of Milan, 68 Ill App2d 63, 214 NE2d 915, as establishing that section 27, chapter 100% applies to a sanitary landfill. The point before us was not discussed in the Milan case for the apparent reason that the joint contract between the Village of Milan and the City of Moline made section 27 inapplicable in any event. In County of Cook v. Triem Steel & Processing, Inc., 19 Ill App2d 126, 153 NE2d 277 (1958), the question of the applicability of section 27 to a sanitary landfill was not presented. In City of Chicago v. Fritz, 36 Ill App2d 457, 184 NE2d 713 (1962), no question of sanitary landfill was presented and the court found that the situation was sufficiently offensive to be labelled a common-law nuisance as well as a statutory nuisance. This site would also be prohibited today by the prohibition against open dumping contained in the 1963 statute (Ill Rev Stats, c 111%, § 461).

The evidence rather clearly shows that the sanitary landfill method of garbage and other waste disposal was not in common use in 1933 when what is now section 27 of chapter 100% was originally enacted, and we believe the intention should properly be determined with regard to general conditions at the time of enactment. Arnold v. City of Chicago, 887 Ill 532 on 540, 56 NE2d 795.

It is reasonable to conclude that section 27 of chapter 100%, 111 Rev Stats, in terms of history, was not designed to prevent a sanitary landfill, that at the present time the legislative recognition given to the sanitary landfill method of disposal takes it out of the category of a statutory nuisance so that it cannot be said that such nuisance section forbids the use of this property as a sanitary landfill.

Although there is weight in plaintiffs’ argument that the adoption of the Act relating to refuse disposal sites and facilities, (c 111%, §§ 471-476, Ill Rev Stats) created an entirely new scheme covering the subject of refuse disposal and supplanted older legislation on the subject in accordance with the principle announced in Illinois Cent. R. Co. v. Franklin County, 387 Ill 301, 311, 56 NE2d 775, and other cases, it is not necessary to decide that point in this case. Neither is it necessary for us to decide whether section 27 of chapter 100% is unconstitutional as making an arbitrary distinction between “local” and “foreign” garbage as contended by plaintiffs, although this position was apparently reached in Lutz v. Armour, 395 Pa 576, 151 A2d 108, 110, and Ex Parte Lyons, 27 Cal App2d 182, 80 P2d 745,749.

We are brought to the question whether the provisions of the Cook County Zoning Ordinance forbidding the use of this particular property as a sanitary landfill for the disposal of waste including garbage are in that respect arbitrary and therefore unconstitutional and void.

The Supreme Court in Cities Service Oil Co. v. Lake County, 26 Ill2d 176 on 181, 186 NE2d 265, stated:

“The principles governing zoning decisions are too well known to require extensive citation. That the ordinance is presumed to be valid, and that the burden is upon those seeking to assert its unconstitutional aspect to establish the same by clear and convincing evidence is well settled. We have also repeatedly held that where the record presents evidence indicating a fairly debatable question as to the classification made or the action taken, the question must be resolved in favor of the determination of the zoning agency in the absence of a clear abuse of such power. First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213; Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396; County of Cook v. Glasstex Co., 16 Ill2d 72.”

The court also has held that in restricting the use of property, the regulation must bear a genuine relation to the general welfare. In Lazarus v. Village of Northbrook, 31 Ill2d 146 at 151, 199 NE2d 797, at 801, the Supreme Court, in holding invalid the denial of a use for a hospital in an area which had a theatre, a liquor store, a motel and restaurant, two nursing homes, a night club and a tavern said:

“Nevertheless, the denial of a special use permit must bear a ‘real and substantial relation to the public health, safety, morals or general welfare’. (Columbus Park Cong. v. Board of Appeals of Chicago, 25 Ill2d 65, 71.)”

The subject property is a compact tract of approximately 187 acres bounded on- the south by Willow Road, on the north by Techny Road, on the east by West Fork of the North Branch of the Chicago River. The west boundary is formed by the Chicago and Northwestern Railroad which proceeds southwesterly from Techny Road and the Chicago, Milwaukee, St. Paul and Pacific Railroad which proceeds southeasterly from Techny Road. The railroads cross each other near the center of the west boundary. The property extends a little less than a half mile on Willow Road. The Techny Road boundary on the north is much shorter than the south boundary. The north boundary of the property is about one-half mile south of the boundary of Northbrook and the south boundary of the property is approximately a mile north of the boundary of Glenview.

The plaintiffs own the property to the east, north and south of the subject property with two exceptions, and the adjoining property of plaintiffs is used for farming. About one-half mile to the east on Waukegan Road is a tavern. South of Willow Road just east of the railroad embankment is a tract zoned for manufacturing which is occupied by scattered residences, a pony farm, an antique shop and a swim club. The areas, except as noted, of the subject property and the property east and north and south are zoned R-2 and R-3, residential, and are devoted to farming. The area west of the railroads is zoned R-3 near the north, and M-l, manufacturing, on the west and southwest. Immediately south of Willow Road and slightly to the west of the subject property is the Glenview Naval Air Station. There is no present trend of development of the property except farming.

The subject property is below the grade of Willow Road, is subject to flooding and is presently worthless for residential purposes. Although the property is farmed at the present time, the ground level would have to be raised substantially to make it really suitable for farming.

Counsel are not in agreement on the interpretation of the Cook County Zoning Ordinance in reference to sanitary landfills. Plaintiffs’ counsel argue that since landfills are a permitted use by special permit under the R-3 classification along with public utility and service uses and sewage treatment plants, the use could be permitted without change of classification. They argue that “landfill” is a permitted use in all zoning classifications. Defendants’ counsel argue that it would be necessary to obtain a special use permit under an M-2 classification. The words “sanitary landfill” are not used in the ordinance. The words used in the M-2 and M-3 categories are “areas for dumping of garbage refuse or trash.” Plaintiffs in turn argue that the M-2 references to areas for dumping garbage mean “open” dumping of garbage which is now prohibited everywhere by 111 Rev Stats, c 111%, § 461. The trial court did not pass upon this issue as such, but held that the provisions of the ordinance insofar as they prevent reclaiming the plaintiffs’ land by means of a sanitary landfill are arbitrary and void.

Since the granting of the permit to operate a landfill would not be a permanent use, and would not of itself affect the present R-3 Residential Classification, the issue is of little significance in this case.

The issue is whether the ordinance bears any real and substantial relation to the public health, safety or welfare when it denies permission to operate a sanitary landfill upon this property and there has been refusal of a special permit.

Initially, as to the issue of public safety, the questions of danger to aviation in respect to Glenview Naval Air Base, and traffic dangers created by garbage trucks were presented by witnesses.

Considerable testimony was elicited regarding the bird and sea gull problem from Dr. Clarence Faulkner, the Regional Director for the Division of Wild Life Services of the Department of Interior of the United States. He testified that there is no control program which can permanently prevent a sanitary landfill from being attractive to herring gulls, starlings and crows, and that they constitute a danger to aircraft. Plaintiffs presented Ward Duel, Health Director of the Village of Skokie and former Health Officer of Lake County, Illinois. He had observed twelve landfills in his experience. He testified that a properly operated landfill does not attract birds. The Zoning Board of Appeals, in its supplemental report, gave serious consideration to the sea gull problem as a danger to aircraft in recommending denial of the landfill permit. The United States Government originally filed its representation of interest in this suit alleging a hazard to air operations at the Glenview Naval Air Station. However, on November 1, 1966, the United States Government withdrew its motion to intervene and its representation of interest. Since the only hazard to aviation alleged was that in respect to Glenview Naval Air Station, we may assume that this was the only known hazard, that the United States Government had investigated its interest in the matter and had withdrawn its representation of interest and that it is satisfied that there is no longer a serious issue.

In respect to traffic problems, Leo J. Wilkie, the head of the Traffic Engineering Division of the Cook County Highway Department testified that Willow Road, the planned access road, is elevated over the railroad and truck drivers leaving the site would be unable to see fast moving traffic from the west. He also said the four percent grade of the railroad bridge presented an ice problem. Plaintiffs presented Mr. Paul Box, a consulting traffic engineer with an impressive background of experience and national recognition who testified that the additional truck movements considering the time of day of such movements would be absolutely insignificant, and would have no effect whatsoever on the traffic capacity of the route. The witness based his conclusions as to traffic flow in part on a landfill site in the metropolitan area known as the Sexton Site. He also testified that the additional traffic from the operation would be substantially less than the traffic which would be generated by development of the property for residential purposes. The trial court’s finding that traffic problems did not constitute a substantial justification for zoning restriction is not against the manifest weight of the evidence.

Extensive testimony was given by Dr. John R. Sheaf - fer, Resources Planning Officer of the Northeast Illinois Planning Commission, the burden of which was that a floodplain makes the site unsuitable for garbage deposit because of the difficulty in controlling leachate with probable pollution of the water table and nearby streams. The plaintiffs presented Matthew Riddel, a sanitary engineer, who made studies of the site and developed a plan for the operation which made provision for sealing off seepage from the landfill operation and for treatment of water that might escape in the operation. Plaintiffs also presented Robert DeJonge, Registered Engineer and Chief Sanitary Engineer for the Cook County Health Department, who testified that he considered the plaintiffs’ plans for sanitary landfill as consistent with the public health of the persons in the area.

In addition to engineering testimony regarding the health control problems in respect to the proposed sanitary landfill, the trial court admitted portions of the recommendations of the Cook County Zoning Board of Appeals under date of May 11, 1965, regarding applications of the plaintiffs to rezone the property described in the complaint. We think that testimony before the court by witnesses, subject to cross-examination, independently supported the trial court’s findings, but portions of the report so succinctly summarize the situation that they provide clarity upon the proposition:

“There is no escape from the refuse disposal problem, however, and it is a problem of critical importance. The Northeastern Illinois Metropolitan Area Planning Commission (referred to herein as the Planning Commission) an official advisory agency and one whose views are entitled to substantial weight, published in June, 1963, its Technical Report No. 3 on Refuse Disposal Needs. Surveying the six counties of Northeastern Illinois, the Commission Study reported that
‘on the basis of current population projections it is estimated that 150 million cubic yards of refuse will have to be collected by 1970. Existing incinerators could bum approximately one third of this amount leaving a balance of 105 million cubic yards of refuse that must be accommodated at disposal sites. This volume of refuse would cover an area of 50 square miles to a depth of 2 feet.’
“Much of the opposition to the present applications is based upon the conviction that it is simply not possible to conduct a sanitary landfill in a nuisance free unobjectionable manner. Thus in the petitions objecting to the granting of the applications reference is made to ‘unbearable stench/ ‘rodents/ ‘squirrels, dogs, cats and rabbits/ ‘stream pollution’ and ‘hazardous traffic/ chargeable against ‘garbage trucks.’ But these objectionable features are simply not part of a modern, scientific and well operated landfill.
“The evidence before the Board on these applications, the evidence in the earlier River Road Sanitary Land Fill application, publications of the United States Public Health Service, the American Public Works Association and many other agencies establish that a modern sanitary landfill operated in accordance with up to date procedures and control measures can be a nuisance free method of dealing with the critical problem of refuse disposal. As put by the United States Public Health Service in a recent bulletin: ‘Sanitary land filling is a method of disposing of garbage, rubbish and ashes on land without nuisance, fire or public health hazard.’ This fact of life, so hard for those with vivid olfactory memories of open garbage dumps to believe, has been accepted by the Illinois State Legislature for a 1964 amendment to the Illinois Public Health Statute (Ch 111%, Sec 461-463) prohibiting open dumps expressly accepts the operation of ‘sanitary land fills.’ This Board accepts as an established fact that sanitary land fill can be nuisance free. . . . (Emphasis supplied.)
“It is desirable, though not essential, that a landfill operation as a limited period type of light industrial activity be situated away from developed residential areas. The subject property is strategically situated on that score. To the northwest and southwest there are railroad rights of way to serve as barriers protecting adjoining property, zoned M-l. To the east of the property is undeveloped and is owned by the applicants. To the north are some residences but they lie to the west and are protected by a high embankment. To the south are commercial and recreational establishments on land zoned M-l lying on the eastern side of the property to the south. As stated by the Committee on Facilities Planning of the North Suburban Council on Refuse Disposal, ‘the site is relatively remote from concentration of residence, has reasonable access from public roads, is conveniently located for use of our member municipalities, and the Committee believes it is well adapted for the proposed use. . . .
“The objection was repeatedly made at the hearings that there is no public machinery presently provided in the way of state legislation to insure that high operating standards laid down in private agreements will in fact be maintained. To this objection two answers can be made. In the first place the evidence is persuasive that applicant’s licensee is experienced and successful in conducting a modern well operated sanitary landfill near Riverwood. In the second place, this Board has the authority to recommend that the granting of a special use be made subject to ‘conditions and guarantees’ deemed necessary to protect the public interest. (Cook County Zoning Ordinance, Article VI, Section 6.9(e).) Thus, the ‘Buies’ of the License Agreement can become ‘public law’ through the medium of being incorporated as special conditions on the operation of the special use. Should a sanitary landfill degenerate into a ‘dump’ with its attendant nuisance, it would be shut down by the public authority.”

Although the findings of the Cook County Zoning Board of Appeals were independently supported by testimony of witnesses before the trial court, counsel for defendants contend that the trial court erroneously admitted the record of these findings and erroneously considered them in arriving at his decision. We think on the contrary that the Cook County Zoning Board of Appeals is an official fact finding body and when, as here, after extensive hearings and careful consideration the Board makes specific findings a trial court, though not bound by the findings in this case, is entitled to give proper weight to them. We think there is ample precedent for this recognition. In Lazarus v. Village of Northbrook, 31 Ill2d 146, 199 NE2d 797, 800 and 801, which was an attack upon a zoning ordinance by independent suit, the Supreme Court took note of the findings of the Plan Commission of the Village of Northbrook as concurred in by the trial court. In Ward v. Village of Skokie, 26 Ill2d 415, 186 NE2d 529, which was an attack upon a zoning ordinance by independent suit, the court took note of the Plan Commission’s recommendation of the proposed use. In Lancaster Development, Ltd. v. Biver Forest, 84 Ill App2d 395, 228 NE2d 526 on 529, an independent action to compel issuance of a building permit, the court took note of the concurrence of the trial court in the recommendation of the Zoning Board. While it is true that certain legislative determinations in respect to zoning do not afford any evidentiary material for a court in an independent proceeding, nevertheless, where an official board has made specific findings, which are subject to support or contradiction, we think the fact that such specific findings have been made by an official body may be properly considered by the court. The weight to be given in each case may depend upon proven or upon generally accepted facts. The fact that the Illinois Legislature has recognized that sanitary landfills may be nuisance free is entitled to great weight.

The ultimate recommendation of the Zoning Board of Appeals of Cook County was “that the application be denied at this time.” The two reasons assigned were the present adequacy of disposal facilities in the area, and the dangers to aircraft at Glenview Naval Air Base. The latter reason was based upon an objection of the United States Government which has been withdrawn since this finding was made.

While it is perhaps too extreme to say that policy questions as to an appropriate “time” when facilities which are otherwise unobjectionable may be used are entirely outside the scope of zoning authorities’ power, nevertheless, we feel that to justify such an exercise of power conditions must be shown, such as the existence of conflicting plans or programs. We think it is beyond the power of zoning authorities to deny a legitimate use solely on the ground that other sites are available where such use may be made.

We think that the physical situation as outlined with reference to the distance of the property from other residential property, the existence of natural protective barriers which the evidence bears out and which were noted by the Zoning Board of Appeals amply justify the trial court in finding that the proposed use would not adversely affect the use or value of properties in the immediate vicinity and the general surrounding areas. The problems of flying paper and unsightly exposure of garbage and paper are problems of operation which are properly the subject of the regulatory authorities in existence and do not militate against the granting of the zoning permit. These are not reasons given by the zoning authorities for denying the permit.

Counsel for defendants complain of the ruling of the trial court in refusing to allow impeachment of the witness, DeJonge, by prior inconsistent statement as to the birds seen by him on visiting landfill sites and that the proposed leachate treatment would have no effect upon chemical wastes. Plaintiffs’ counsel contend no proper foundation was laid for the impeachment. Objection is also made by defendants’ counsel to admission of a purported staff letter of the Northeast Illinois Planning Commission, the copy of which had certain matter with reference to the Commission’s approval of the site, which did not appear in the original letter. The purpose of plaintiffs’ counsel apparently was to show that Dr. Schaeffer, who now opposes the proposed site, once participated in a report which is alleged to have favored it. Our view of the controlling issues, and the trial court’s views on these issues, makes the rulings on these specific objections immaterial.

Counsel for defendants state that there is no evidence that the zoning restriction is a crucial factor in diminishing the value of plaintiffs’ land. There is testimony that the value of the land is $46,500 for farming, and that if divided into one-half acre lots it would have a value of three and one-half million dollars. Defendants’ counsel say it clearly appears that it is the topographical nature of the land and not the restriction of zoning which affects the value of the property. While the difference in value caused by a restriction is sometimes a vital factor in a decision as to the validity of a zoning regulation, it is not a necessary part of an attack upon a regulation that it be shown to diminish the value of the property and conversely, if the regulation is reasonable, the diminution of value will not in and of itself make the regulation invalid. Reeve v. Village of Glenview, 29 Ill2d 611, 195 NE2d 188, 191.

The true test is whether the zoning regulation bears some real substantial relation to public health, safety or welfare. Lazarus v. Village of Northbrook, 31 Ill2d 146, 199 NE2d 797, 801, and LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, on 46, 145 NE2d 65.

The injunctive portion of the judgment is drafted in a manner to fully protect the public from present and future nuisance which might arise from an improper operation of the proposed sanitary landfill use. The trial court reserved jurisdiction to enforce compliance with the plans for construction and maintenance of the landfill.

The judgment of the Circuit Court is affirmed and the cause is remanded for the exercise of the court’s retained jurisdiction.

Affirmed and remanded.

SMITH and CRAVEN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DAVIS

license: Public Domain

text:
    Sharon Rapp, Individually and as Administratrix of the Estate of Lorraine Rapp, Deceased, Plaintiff-Appellant, v. Mildred E. Hiemenz, Defendant-Appellee.
    Gen. No. 68-85.
    Second District.
    March 24, 1969.

      Dreyer, Foote and Streit, of Aurora, for appellant.
    Gates W. Clancy, of Geneva, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff brought this suit, individually and as Administratrix of the Estate of Lorraine Rapp, Deceased. Her complaint alleged that on May 23, 1964, the time of the injury, she was pregnant with a living, viable child, later named Lorraine Rapp; that the defendant, on that date, through negligence or wilful misconduct in driving her automobile, proximately caused permanent injuries to the plaintiff and to the unborn child, from which the child died.

The question of liability for the death of the unborn child was raised before the trial court by the defendant’s motion for summary judgment, which the court granted. The balance of the plaintiff’s complaint, relating to her own personal injuries, went to trial before a jury. The trial court, at the close of all the evidence, directed a verdict for the plaintiff on the question of liability. The jury returned a verdict in favor of the plaintiff in the sum of $500. The plaintiff appealed from both the summary judgment on the wrongful death claim and from the amount of damages assessed by the jury in her own personal injury action.

In the wrongful death action, the pleadings, affidavits and depositions before the court, indicated that on May 23, 1964, the date of the auto accident, the plaintiff was approximately four and one-half months pregnant; that she had felt movement of the fetus prior to this, and further, experienced “signs of life” and movement of the fetus thereafter, but that during the months of August, September and October, these movements did not appear as often and finally ceased; and that on November 18, 1964, the said child was stillborn.

At the time of the accident, the plaintiff was thrown into the steering wheel and was bruised along the lower left portion of her abdomen, side, and back. She suffered stomach cramps and internal bleeding thereafter. The plaintiff’s obstetrician saw her immediately after the accident and prescribed rest and observation. The doctor again saw her on June 1, at which time she complained of a dull, low backache and general discomfort, but no severe pain. The doctor stated that she next saw the plaintiff on June 30, and again on July 14; that in June the pregnancy looked to be about the size of a four-month gestation, but by July 14 the size had increased markedly, to about the equivalent of a seven- or eight-month gestation.

The doctor saw the plaintiff regularly thereafter. About the middle of October, at which time the doctor said the plaintiff was past due, she observed that the patient was too large and the fetus’ head was not engaged. She ordered an x ray on October 27 because she did not hear any heart tones, and the x ray indicated a hydrocephalic child. The child, who was taken stillborn from the plaintiff on November 18, 1964, by a surgical type delivery which required a crushing of its head, also had a meningocele, which is not uncommon with hydrocephalics. The doctor indicated that as a result, she did not know what caused the condition. No autopsy was performed.

The doctor, when asked her opinion as to a causal connection between the injury to the plaintiff on May 23, which she had observed, and the subsequent stillborn birth, answered that she did not know the direct cause or causal relationship. She testified in her deposition “. . . what’s the sequence of events here, I wouldn’t be able to say. There is a probability but not a-there is a possibility but the probability is minor.”

In Amann v. Faidy, 415 Ill 422, 114 NE2d 412 (1953), at page 432, the court, in overruling Allaire v. St. Luke’s Hospital, 184 Ill 359, 56 NE 638 (1900), held that there could be a wrongful death action in behalf of a viable child, who suffered prenatal injuries and was thereafter born alive, but subsequently died as a result of those injuries. The court enumerated the various policy and precedent arguments both favoring and disfavoring the determination that a cause of action could exist for the wrongful death of a child who was negligently injured en ventre sa mere and who, after his birth, died as a result of those injuries.

The language of Amann sets forth two requirements. The first is that the child be born alive. The issue of whether a wrongful death action would lie if the child had not been born alive was not before the court; and the court — at pages 423 and 424, in defining the issue before it; at page 427, in referring to various legal articles urging a course of action in behalf of “a viable child, who survives birth”; and at page 432, in setting forth its holding — clearly limited its decision to a pronouncement that such an action would lie if the child were born alive and subsequently died as a result of prenatal injuries.

The second requirement in Amann — found in the statement and cases cited at page 426 — is that the child be viable and capable of existing independently of the mother at the time the injuries are wrongfully inflicted. At page 431, the court defined a viable fetus as one sufficiently developed for extrauterine survival, normally a fetus of seven months or older.

Subsequently, the Appellate Court extended the holding in Amann. It held that there was no valid basis for distinguishing whether the injuries were inflicted upon the fetus at a time it was viable as opposed to nonviable; that if the child were later born alive, it should have a cause of action. Daley v. Meier, 33 Ill App2d 218, 178 NE2d 691 (1961). Also see: Sana v. Brown, 35 Ill App2d 425, 426, 183 NE2d 187 (1962).

The factual situation in the case at bar is different from that in either Amann or Daley, supra. Here the injuries were inflicted at a time the fetus was nonviable, and the child was born dead. We are asked to determine whether a wrongful death action may exist in such a case. This subject is treated in an annotation found in 15 ALRSd 992, entitled “Death Action — Unborn Child.”

In discussing whether or not a wrongful death action may be maintained for the death before birth of a child as a result of injuries sustained while in its mother’s womb, the annotation refers to a number of decisions which suggest a rather general division of authority on the question.

In those jurisdictions which have held such an action is maintainable, the courts, with the exception of one Georgia case, have held a wrongful death action may be maintained for the death of an unborn child, where- there was a viable fetus. Apparently, only Porter v. Lassiter, 91 Ga App 712, 87 SE2d 100 (1955), has permitted recovery for the death of an unborn child even though the child was not viable at the time.

While Daley holds that the right to a cause of action should not depend on whether the fetus was viable when injured, that case must be read in light of the fact that the child held there to be entitled to a cause of action, was born alive. In the instant case the child was stillborn. The occurrence giving rise to the injury, in the case at bar, took place when the fetus was not viable, and the facts before the court — such as the marked swelling in July and the lessening of the fetus movement from August on — strongly suggest that at no time was there a viable fetus capable of independent existence. We are not moved, under the circumstances, to attempt to expand the holding in Amann. We are of the opinion that no wrongful death action should lie where the injury complained of took place when the fetus was not viable, and when the child was not born alive. Under the circumstances, we believe the trial court correctly granted the defendant’s motion for summary judgment.

In the action for her own injuries, the plaintiff contends that two of the instructions and one of the verdict forms given to the jury were improper; that certain testimony was erroneously excluded; and that the removal of the issues of lost earnings and permanency of her injuries was improper.

The instructions complained of referred to the issue of proximate cause of the injuries. The trial court had clearly indicated, that in directing the issue on liability, it was doing so only on the issues of negligence and contributory negligence. Both the issues of proximate causation and damages were to remain for the determination of the jury. The approach may have been somewhat unique, but there was no misunderstanding by counsel or litigants with reference to what the court was doing. It was proper, and essential, under this approach, to instruct the jury relative to proximate cause as an issue in the case.

Because the issue of proximate cause of the injuries remained in the case, it was also proper to submit a verdict form which would have permitted the jury to have found for the defendant and against the plaintiff. Further, the fact that the jury did find for the plaintiff indicates that the plaintiff suffered no prejudice from the submission of this verdict form.

The trial court refused testimony relative to the permanency of the plaintiff’s injuries and removed this issue from the consideration of the jury. A review of the evidence relative to the plaintiff’s injury indicates that the trial court was correct in doing this, and, certainly, that the plaintiff was not prejudiced thereby.

Her testimony relative to her loss of earnings was speculative and vague. She testified that she had been employed on a commission basis as a door-to-door saleslady, but could offer nothing to corroborate her statement relative to earnings. She testified to loss of earnings for a given period of time — during a part of which she had been unable to work due to two pregnancies. It is highly doubtful that a verdict based, in part, upon such vague and speculative evidence of loss of earnings, would have been upheld.

We have considered the trial rulings of which the plaintiff has complained, have examined all of the evidence, and are satisfied that a just conclusion has been reached. We find that no error occurred at the trial which was prejudicial to the plaintiff’s rights. Under the circumstances of this case, the judgment, in excess of five times the special damages, appears adequate and, therefore, should be affirmed. Ziegler v. Smith, 86 Ill App2d 215, 224, 229 NE2d 340 (1967).

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: PRESIDING JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. David D. Considine, Defendant-Appellee.
    Gen. No. 68-107.
    Second District.
    March 24, 1969.

      Albert Kennedy, State’s Attorney of Lee County, of Dixon, for appellant.
    Thomas E. Hornsby, of Dixon, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The defendant, David D. Considine, was charged by way of information with the theft of a glass window pane. Prior to trial he filed a petition to quash the search warrant, suppress the evidence obtained thereby and for a return of the property taken by the sheriff. The magistrate entered an order in accordance with the prayer of the petition and it is from this order that the State appeals.

The complaint for a search warrant, in part, provided that the complainant had probable cause based upon the following:

“Ronald Hargitt and William Connell stated to the investigating officers, Val R. Galindo, Robert L. Bales, Robert Wise and State’s Attorney Henry S. Dixon, that they observed the said David D. Considine remove the glass pane from the paint shop of the Dixon State School and from the grounds.
“The door to which the pane and frame attach has been located on the front door portion of Considine’s Tavern in Harmon, Illinois, a tavern owned and operated by the defendant’s family.
“A confidential informant known to the investigators to be competent, accurate and reliable, has told the investigators, Robert L. Bales, Val R. Galindo and State’s Attorney Henry S. Dixon, that David D. Considine placed the aforesaid frame in storage at one of the described premises listed above, the informant having personal knowledge in that he observed such act.”

The order quashing the search warrant was entered on May 23, 1968, but did not contain any findings of fact or conclusions of law as required by statute (111 Rev Stats 1967, c 38, § 114-12 (e)). Thereafter on July 3, 1968, the magistrate, in an attempt to cure this defect, filed a memorandum of decision. This happened after the notice of appeal was filed and jurisdiction passed to this Court.

During the hearing, the defendant was the only one to testify and his testimony was confined to the manner in which the search warrant was executed. No other evidence was introduced. The State, therefore contends that the defendant failed to sustain the burden of proof necessary to allow the motion. If this were all, as far as the evidence was concerned, we would be inclined to agree with the State.

The defendant, however, contended at the trial level and contends here, that the complaint upon which the search warrant was issued is just as much evidence as any direct testimony and when it can be shown that the complaint was invalid, then the warrant and the search that followed is also invalid. This is so regardless of the conformity of the court’s order with the statute. We agree.

In Aguilar v. State of Texas, 378 US 108, 114, 12 L Ed2d 723, 84 S Ct 1509, 1514 (1964), it was stated:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 US 257, 4 L Ed2d 697, 80 S Ct 725, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 US 528, 84 S Ct 825, was ‘credible’ or his information ‘reliable.’
“Otherwise,
“ ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, supra, 357 US at 486, 78 S Ct at 1250; Johnson v. United States, supra, 333 US at 14, 68 S Ct at 369, or, as in this case, by an unidentified informant.
“We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner’s trial.”

More recently, in the case of Spinelli v. United States, 393 US 410, 21 L Ed2d 637, 89 S Ct 584 (1969), the Supreme Court thought it desirable to further explicate the principles of Aguilar. At 21 L Ed2d 641-642, the Court said:

“In Aguilar, a search warrant had issued upon an affidavit of police officers who swore only that they had ‘received reliable information from a credible person and do believe’ that narcotics were being illegally stored on the described premises. While recognizing that the constitutional requirement of probable cause can be satisfied by hearsay information, this Court held the affidavit inadequate for two reasons. First, the application failed to set forth any of the ‘underlying circumstances’ necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he said they were. Second, the affiant-officers did not attempt to support their claim that their informant was ‘ “credible” or his information “reliable”’. . . .”

and then, at p 643 stated:

“Applying these principles to the present case, we first consider the weight to be given the informer’s tip when it is considered apart from the rest of the affidavit. It is clear that a Commissioner could not credit it without abdicating his constitutional function. Though the affiant swore that his confidant was ‘reliable,’ he offered the magistrate no reason in support of this conclusion. . . .”

In the instant case, the complaint fails to set forth any underlying circumstances upon which the affiant concluded that the confidential informant was “competent, accurate and reliable.” Consequently, the affidavit failed to meet the test set forth in both the Aguilar and Spinelli cases, and the trial court was correct in its order.

Having arrived at this conclusion it is unnecessary for us to pass upon the other contentions of the State except to comment upon the form of the order entered herein by the magistrate.

We are aware of no law that would allow a person’s constitutional rights to be violated simply because the court failed to enter its order in conformance with a form prescribed by statute. Nevertheless, in due deference to the sponsors of this legislative enactment, the judgment of the trial court is affirmed; however, the cause is remanded with instructions to the trial court to vacate its original order and enter an order in accordance with its memorandum of decision which was entered after the notice of appeal was filed herein.

Judgment affirmed and remanded with directions.

ABRAHAMSON and DAYIS, JJ., concur.


author: JUSTICE ABRAHAMSON.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Roy Richmond and Robert Kenneth Sanders, Also Known as Robert Shambley, Defendants-Appellants.
    Gen. No. 68-120.
    Second District.
    March 24, 1969.

      Rex F. Meilinger, of Aurora, for appellants; William R. Ketcham, State’s Attorney of Kane County, of Elgin (W. Ben Morgan, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


text:
    In the Matter of the Estate of Laura H. Toigo, Deceased. Jerome B. Toigo, Appellant, v. Walter W. Ross, Jr., Special Guardian ad Litem-Administrator Pro Tem of the Estate of Laura H. Toigo, Deceased, Richard E. Shea and Jerome B. Toigo, Co-Executors of the Estate of Laura H. Toigo, Deceased, Harry Hull Toigo, II, Harris Trust & Savings Bank, as Guardian of the Estate of Harry Hull Toigo, II, a Minor, Appellees.
    Gen. No. 68-133.
    Second District.
    March 24, 1969.

      Goldsmith, Dyer, Thelin and Schiller, of Aurora, for appellant.
    Peterson, Lowry, Rail, Barber & Ross, and Chapman and Cutler, of Chicago, for appellees.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

This case arose out of a series of tragic events in which three members of one family died within a nine-month period. The controversy involves 900 shares of the common stock of the Pepsi-Cola Aurora, Elgin and Joliet Bottling Company, a family corporation.

In June, 1965, there were 2,500 shares of the company stock outstanding, 999 shares held by Pompey J. Toigo, the father and President of the company, 900 shares held by Laura Toigo, the mother and Secretary of the company, 300 shares held by Harry Toigo, the elder son, 300 shares held by Jerome Toigo, the younger son and petitioner in this case, and 1 share held by one Harry Hull, father of Laura.

The father, Pompey Toigo died in June, 1965, leaving his wife a sufficient number of shares to give her 52 percent of the outstanding shares and dividing the remainder equally between his two sons. In effect, the father’s will gave Laura Toigo another 400 shares, making her total 1,300 shares. Subsequently, Harry Toigo died on January 23, 1966. He was only 30 years of age at the time and he left surviving him his wife, Judith Toigo, who was then pregnant. On September 23, 1966, Judith Toigo gave birth to their only child, Harry Hull Toigo II.

Within a period of about six months then, Laura Toigo, the mother, had lost her husband and elder son, and Jerome Toigo, a young man of about 21 years of age, was quickly forced into the management of the company.

Laura Toigo had cancer since 1959, and was about to enter the hospital for another operation on the evening of February 4, 1966. During that day, to discuss various corporate problems, she met with her son, Jerome Toigo, and with Richard Shea, a Certified Public Accountant who had handled the tax and accounting work of the company since 1957. She stated to Shea that the will of her deceased son, Harry, provided that his company stock went into a trust for the benefit of his yet unborn children. She expressed concern that her son, Jerome, would not have control of the company and said, “In order to assure Jerome complete control of the corporation ... I am giving this stock certificate to him.” Thereupon she took her stock certificate, representing 900 shares of the corporation and signed the same on the back. Shea then witnessed her signature and Laura Toigo gave the certificate to her son, Jerome. Jerome in turn gave the certificate to Shea who was returning to his office in downtown Chicago, which was near the office of the attorneys who represented the firm. Shea was to deliver the certificate to the attorneys so that the transfer could be made on the corporate record books.

Instead, Shea put the certificate in his office safe and did not deliver it to the attorneys. The stock certificate was given back to Jerome Toigo by Shea in December, 1966, and at the time of these proceedings the certificate was in the possession of Jerome Toigo.

On the night of February 4, 1966, Laura Toigo entered the hospital, never to return. She died February 23, 1966, leaving a will which appointed Eichard Shea and her son, Jerome Toigo, as coexecutors of her estate and bequeathed her property “to my lawful descendants living at the time of my death per stirpes and not per capita.”

Following the opening of the Estate of Laura Toigo, the attorney representing the coexecutors prepared their inventory. He testified that in preparing the inventory he consulted with certain banks, reviewed his notes and discussed it with Jerome Toigo. He did not, however, discuss the inventory with Shea. On Friday, December 9, 1966, the last day for filing of the inventory, the attorney appeared at the office of Shea and stayed only long enough to obtain Shea’s signature. The attorney, himself, testified that he did not remove his coat and stayed only a few minutes. Shea signed the inventory but did not read it. The attorney then proceeded to Aurora and had a brief visit with Jerome Toigo, during which time Jerome Toigo signed the inventory but, again, did not read it. In fact, the inventory was signed under oath by both executors and included, as an asset of Laura Toigo, the 900 shares of stock in the bottling company which are here involved.

On June 14, 1967, the coexecutors filed their motion for leave to amend the inventory by deleting therefrom the 900 shares of stock in the bottling company on the ground that those shares were not an asset of Laura Toigo at the time of her death. The motion also requested the appointment of a Special Guardian ad Litem and the court granted a portion of the motion by appointing a guardian.

After hearing evidence, the trial court entered an order denying the motion to amend upon the grounds that the motion represented a claim against the Estate of Laura Toigo and was, therefore, barred by statute as a result of the failure to file in apt time, and further, that the coexecutors had not proved by clear and convincing evidence that Laura Toigo made a gift of the stock certificate to her son, Jerome, prior to her death. This appeal followed.

During oral argument, upon inquiry by this Court as to the whereabouts of the certificate of stock in question, we were informed that the certificate was not made a part of the record. Counsel stipulated that if the certificate were present it would disclose (1) that it represented 900 shares of the company stock in Laura Toigo’s name, (2) that it was endorsed in blank by Laura Toigo, (3) that no date was entered on the certificate as to the time of the alleged assignment, and (4) that there was no dispute as to the signature of Laura Toigo being witnessed by Shea.

Section 8-309 of the Uniform Commercial Code (HI Eev Stats 1965, c 26, § 8-309), states:

“An indorsement of a security whether special or in blank does not constitute a transfer until delivery of the security on which it appears or if the indorsement is on a separate document until delivery of both the document and the security.”

Shea gave the only direct evidence of what transpired on February 4th when he met with Laura and Jerome Toigo, when he stated that, at that meeting, Laura sighed her stock certificate, had it witnessed by him and delivered it to her son, Jerome. At that moment, endorsement and delivery completed the gift and Jerome became the owner of the stock. The subsequent location of the certificate itself or the fact that the stock was not transferred on the corporate records, cannot alter that fait accompli.

Our attention is drawn to the case In re Estate of Hill, 42 Ill App2d 396, 192 NE2d 429 (1963). In that case the deceased husband, a Mr. Hill, delivered 2,000 shares of the common stock of Lakefront Kealty Corporation to his wife. He did not endorse the stock, as was done in the case at bar, and the stock remained in his name, both on the certificate and on the books of the corporation. The stock certificate, however, was in his wife’s possession at the time of his death. The executor brought a citation proceeding to recover the stock, alleging that the deceased husband, and not the wife, was the owner. After much litigation, it was decided by the Appellate Court that the mere delivery of the stock by husband to wife, combined with an expression that the stock was to be the wife’s property, was sufficient to constitute a gift. The Court said at page 400 in quoting from a New York case, “Actual delivery of an unendorsed instrument . . . carries with it an implied and irrevocable power of attorney to do the things necessary in completing the transfer, so that difficulties in effecting transfer do not affect the title.” The court also said at page 404, “There is no suggestion in this proceeding of any fraudulent practice. Furthermore, from the standpoint of general principles to be followed in all cases, attention and consideration should be given to the position of the donee. It cannot be denied that gifts can be and commonly are made in the manner described here. It is therefore pertinent to inquire how a donee can be expected to offer more in the way of proof than has been presented here.” The case before us is much stronger since Laura Toigo actually endorsed the certificate and delivered it to her son, Jerome.

In addition to the direct testimony of the witness Shea, we have the relationship of mother and son. In Frey v. Wubbena, 26 IU2d 62, 70-71, 185 NE2d 850 (1962) the Supreme Court said, “There is a presumption that the taking or placing of title by a father in a child is a gift or advancement, and the burden is upon one questioning the gift to overcome the presumption by clear and convincing proof .... (Citations omitted.) There is a further presumption of acceptance of a gift beneficial to the donee. (Citations omitted.)” We are not suggesting, of course, that the estate had any burden of proof. Admittedly, the burden of proof was on the petitioner, Jerome Toigo, but, in addition to the direct testimony he presented, he is entitled to the presumption of gift due to his relationship with the donor.

To rebut the testimony of Shea, the Estate introduced testimony of a negative nature that was limited to inference and innuendo. This testimony consisted of conversations that the mother had after the date of the gift and before her expiration wherein no mention of the gift was made. Also noted was the fact that Jerome remained silent about the gift during conferences had with Judith Toigo and legal representatives of the estate of Harry Toigo, at a time when Jerome was negotiating for the purchase of the company stock held in his brother’s estate. At no time, prior to the filing of the petition herein, was there a disclosure that a gift of the stock had been made. Based upon this evidence, the Estate argues that a gift had not been made.

The burden was upon Jerome to show by clear and convincing evidence that a gift of the stock had been made and unless rebutted by sufficient evidence on the part of the Estate, he should prevail. From a review of the evidence, we conclude that Jerome met this burden, that the Estate failed to rebut the same by sufficient evidence and that Laura Toigo did, in fact, make a gift of the stock to her son before her death.

The question then becomes whether or not the motion to amend the inventory constituted a claim against the Estate as contemplated by the statute or was it simply a motion to delete an item mistakenly inventoried.

Section 204 of the Probate Act, in force at the time, (Ill Rev Stats 1965, c 3, § 204) provided, “All claims against the estate of a decedent, except expenses of administration and surviving spouse’s or child’s award, not filed within 9 months from the issuance of letters testamentary or of administration, are barred as to the estate which has been inventoried within 9 months from the issuance of letters.” As noted, Laura Toigo died February 23, 1966. Letters testamentary were issued on March 11, 1966, and the inventory, which included the stock here in question was filed Friday, December 9, 1966, just short of nine months from the issuance of letters. Since the petition to amend was not filed until June, 1967, it is barred if it is a “claim” against the estate. Under the Probate Act, “claim” is defined as follows: “ ‘Claim’ includes any cause of action.” (Ill Rev Stats 1965, c 3, §2(j).)

The Estate directs our attention to two cases containing language which might be thought to support the contention that this motion to amend is a claim within the meaning of the statute.

First is the case of In re Estate of Stahl, 305 Ill App 517, 531, 27 NE2d 662 (1940), wherein the argument was made that the decedent had given the claimant certain securities just prior to his death. There was no direct proof of this occurrence and only the claimant sought to testify, but her testimony was barred under section 2 of the Evidence Act (Ill Rev Stats 1965, c 51, § 2). In addition, there was no identification of the securities, so on the facts alone the gift was not proven. However, as an afterthought and by way of pure dicta, since the case had already been decided, the Court said that the petition was barred under the statute limiting claims. A reading of the case as a whole indicates that this language was not necessary for the decision, since the Court had already held correctly that no gift was proven. Therefore, we view the language as mere dicta and not binding upon us.

The second case is that of Chicago Title & Trust Co. v. Merchants Loan & Trust Co., 244 Ill App 302 (1927). There a creditor-debtor relationship existed wherein one Johnson borrowed certain funds from a man by the name of Grace, giving him in return promissory notes together with certain shares of stock in Johnson’s company. The stock was transferred into the name of Grace and the corporate record books in the Johnson company changed so as to show Grace as the shareholder. Subsequently, Johnson made another agreement with Grace wherein it was stipulated that the transfer of the stock was made “in full payment and satisfaction” of Grace’s claims against Johnson. Grace died and the stock was inventoried in his estate since it was in his name and the corporate record books of the Johnson company showed him to be the owner of the stock. The Court held that under the facts of that case Grace was, indeed, the owner of the stock at the time of his death. Again in dicta, and following its decision on the merits, the Court held that the petition of Johnson was a claim and barred because it had not been filed in proper time. The Court, in addition at pp 311-312, announced the rule to be that, “. . . where it appears, as here, that stock of a corporation stands in the name of a deceased person and has been inventoried as a part of such person’s estate by the executor of his will, any person, claiming title to and ownership of the stock, is barred from enforcing his claim unless the same is presented to the probate court or some other court of competent jurisdiction, within one year after letters testamentary are issued to said executor, under the provision of section 70 of the act concerning administration of estates.” It thus appears that there are three distinguishing features between that case and the case at bar. First, the latter language is mere dicta and was not essential to the decision as the Court had already decided the case before making the statement. Second, a creditor-debtor relationship, without any presumption of gift, existed. Lastly, the rule announced applies to a situation where the stock in question stands in the name and possession of the deceased person. That is not true in the case at bar because, as we have already found, a completed gift had been made to Jerome prior to the death of the decedent. Therefore the stock did not stand in the name of the decedent upon her death and should not have been inventoried as a part of her estate.

If we were to apply the argument made by the Estate that this petition is a claim against the estate and, therefore, barred since not filed within the claim period, it seems to us that absurd results could occur. For example, suppose by mistake an asset which was never owned by the decedent was inventoried in her estate and the claim period passed. No one would say that the mere passage of time, and in this instance a relatively short time, somehow passed title to the decedent, and therefore, the true owner could not have his property back due to the lapse of time. What then is the difference between that situation and the case at bar? If Laura Toigo made a completed gift of her stock before her death, then it became the property of her son, Jerome. The fact that it was included in the inventory of the Estate of Laura Toigo certainly would not pass the title back to her, just as it would not pass title to an asset which she had never owned.

Another example makes this equally apparent. Under the Probate Act the inventory can be filed on the last day and it will bar all claims not filed that precise day or before that time. The true owner of property could not possibly know that his property was included in the inventory of another until the inventory was filed and if it were filed on the last possible day, as indeed it was in this case, it would then, for all practical purposes, be too late for the true owner to file a claim and regain his property. It is inconceivable to us that the Legislature intended these absurd results to follow. It is also inconceivable to us that the Legislature intended that the type of proceeding here involved would be a “claim” under the Probate Act.

Section 5 of the Probate Act (Ill Rev Stats 1965, c 3, § 5) provides that the provisions of the Civil Practice Act shall apply to probate proceedings and, of course, under the Civil Practice Act a pleading may be amended at any time before or even after judgment to conform to the proofs (111 Rev Stats 1965, c 110, § 46). The pending petition merely seeks an amendment to delete a certain asset mistakenly inventoried and it is not a claim against the estate.

An examination of the cases supports the foregoing conclusion. In the case of In re Estate of George, 335 Ill App 509, 82 NE2d 365 (1948), the Court was concerned with a petition seeking to reclaim certain chattel property alleged to have been given to the petitioner by the decedent before death. The Estate defended on the grounds that the petition was a claim and barred by the statute. The Court, at page 511, denied that contention and said “The instant claim is not a monetary claim. If allowed it could not be paid. It seeks specific property. The claim is adverse to the claim of title by decedent’s personal representative. Plaintiff does not seek through the estate but against it.” In the case of Oliver v. Crook, 321 Ill App 55, 71, 52 NE2d 453 (1943), the Court said, “. . . plaintiff’s claim is not of the character of claims that fall within purview of section 204. Plaintiff’s claim does not arise out of an act of the decedent which gave rise to a cause of action during his lifetime, but it arises out of the act of the administratrix in taking the property of plaintiff. As counsel for plaintiff argues, if the contention of the administratrix were sustained it would mean that if the administratrix took plaintiff’s property, thereby enriching the estate, one or two days before the nine months’ period expired, plaintiff would thereby be barred from recovering a judgment against the administratrix.”

We conclude that this petition is not a claim but simply a petition to amend an incorrect pleading. The petition could not seek to remove the stock from the Estate ■ because the stock was not owned by the decedent at the time of her death.

The case is therefore reversed and remanded to the trial court with instructions to grant the petition and amend the inventory by deleting the certificate of stock in question.

Reversed and remanded with directions.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles R. Brown, Defendant-Appellant.
    Gen. No. 11,012.
    Fourth District.
    March 24, 1969.

      Glenn O. Fuller, Assistant Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Milo J. See, Jr., Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

Found guilty by a jury on one count charging aggravated incest and a second count charging indecent liberties with a child, the defendant was sentenced on the second count to a term of 12 to 20 years in the penitentiary. In this court, he seeks only a reduction of the sentence. The sentencing judge was the trial judge and evidence in aggravation and mitigation was waived by both sides. The trial evidence is the only evidence from which the trial court could determine a proper sentence.

The evidence consisted of the testimony of the mother, a thirteen-year-old daughter, who was the victim, and the defendant. The defendant denied everything, hut did admit that he had inserted his finger into his daughter’s vagina on one occasion to determine whether or not she was a virgin. The jury believed the testimony of the mother and daughter that upon at least two occasions the defendant had sexual intercourse with the daughter and on some fifteen to thirty occasions had fondled her breasts and privates. He admitted that he frequently was unclothed in the presence of the other four children whose ages range from a six-year-old daughter to the thirteen-year-old victim. He denied that he was the father of any of the children, but stated that he knew whose they were. This record discloses either a shocking disregard for the truth or a densely polluted moral atmosphere in the home.

In this atmosphere, the defendant argues that the record fails to show any previous engagement in this kind of conduct prior to 1967 either in or out of his family or the prior conviction of any criminal offense and that the evidence of guilt is less than overwhelming. Thus he states that the sentence with a minimum of 12 and a maximum of 20 is excessive. Under Ill Rev Stats, c 110A, § 615 (Supreme Court Rule 615(b) (4)), a reviewing court has the power to reduce the punishment imposed by the trial court. Under Ill Rev Stats 1967, c 38, § 1-7 (g), it is provided that for the purpose of determining sentence, the court shall consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if cmy, as to the moral character, life, etc., and may consider such evidence in aggravation or mitigation of the offense. In People v. Nelson, 41 Ill 2d 364, 243 NE2d 225, it was held that the phrase “if any” contemplates the possibility of a waiver of hearing in mitigation by the defendant and further states that the burden of presenting mitigating circumstances falls upon the defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review. The defendant here affirmatively and squarely waived that right. Therefore here, as in Nelson, the propriety of the sentence must be based upon the present record.

The statute on indecent liberties with a child, HI Rev Stats, c 38, § 11-4, provides for a penitentiary sentence with a minimum of 4 and a maximum of 20 years. We would point out that the 4-year minimum suggests legislative unhappiness with this type of crime. We may judicially notice that this legislative declaration of public policy suggests more than a “powder puff” approach to defendants guilty of such a crime. The philosophy that the hope of an early release may furnish a correct incentive to a prisoner to comply with a rehabilitation program of modern penal institutions does not open the door for us to undermine the legislative public policy as to length of sentence. People v. Taylor, 35 Ill2d 341, 220 NE2d 165, reminds us that the authority granted by Rule 615 should be applied with considerable caution and circumspection. Nelson requires the defendant by a substantial showing to justify a reduction of sentence on review. In People v. Smith, 62 Ill App2d 73, 210 NE2d 574, it is pointed out that if the defendant has been of good moral character and his past life exemplary or if there are extenuating circumstances, family history, educational background, health or occupational history which might favorably affect the punishment about to be imposed, the defendant should be eager to make it known to the trial court. It was there further stated that it is the responsibility of the defendant to put such material before the trial court and thus in the record for our benefit on review. There is nothing in this record that suggests that we should interfere with the sentence of the trial court and the judgment must thus be affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: PER CURIAM.

text:
    Bruce Rajala, a Minor, by Hope Rajala, His Mother and Next Friend, et al., Plaintiff-Appellants, v. Joliet Grade School District No. 86, Joliet, Illinois, Defendant-Appellees.
    Gen. No. 66-114.
    Third District.
    March 26, 1969.
    Raymond A. Bolden, of Joliet, and Raymond E. Harth, of Chicago, for appellants.

      McKeown, McKeown & Fitzgerald, of Joliet, for appellees.
   PER CURIAM.

The plaintiff, Bruce Rajala, by his mother and next friend, filed an action in the Will County Circuit Court against the defendant, Joliet Grade School District No. 86, which in substance alleges a violation of the so-called “Armstrong Act” (1967 Ill Rev Stats c 122, § 10-21.3). This Act contains the following provisions:

“Attendance units. To establish one or more attendance units within the district. As soon as practicable, and from time to time thereafter, the board shall change or revise existing units or create new units in a manner which will take into consideration the prevention of segregation and elimination of separation of children in public schools because of color, race or nationality. All records pertaining to the creation, alteration or revision of attendance units shall be open to the public.”

Plaintiff in the action sought a declaratory judgment that the Joliet District had failed to comply with the Armstrong Act. The plaintiff requested that an injunction be issued restraining the school district from keeping school attendance units in violation of the statute. It was alleged that 21 out of 26 school units were either 90% white or 90% negro and that no action to eliminate this situation had been taken.

The Joliet School District filed a motion to dismiss the complaint on the ground that plaintiff had failed to exhaust the required administrative remedy for enforcement of the Armstrong Act. The procedure referred to is set forth specifically in § 22-19 of chapter 122, 1967 Ill Rev Stats. The section referred to was passed in 1961 when the original act was proposed (which later was revised and passed as the Armstrong Act, in 1963). As a result, the particular section was in force two years before the Armstrong Act became law in the State of Illinois. In § 22-19 of the Act referred to it is provided:

“Complaint of alleged segregation. Upon the filing of a complaint with the Superintendent of Public Instruction, executed in duplicate and subscribed with the names and addresses of at least 50 residents of a school district or 10%, whichever is lesser, alleging that any pupil has been excluded from or segregated in any school on account of his color, race, nationality, religion or religious affiliation, or that any employee of or applicant for employment or assignment with any such school district has been questioned concerning his color, race, nationality, religion or religious affiliation or subjected to discrimination by reason thereof, by or on behalf of the school board of such district, the Superintendent of Public Instruction shall promptly mail a copy of such complaint to the secretary or clerk of such school board.”

It is further specified in such section that the Superintendent of Public Instruction is to provide for a hearing and notice to parties in interest. There are provisions for subpoena of witnesses, representation by counsel, examination of records and depositions. A reporter is required to take the testimony. The hearing officer is then to file a report of the hearing with the Superintendent of Public Instruction who then renders a decision in the matter. If the Superintendent of Public Instruction “so determines,” he can request the Attorney General to apply to the Circuit Court for an injunction or other relief “to rectify the practice complained of.” Section 22-19 also specifies that the provisions of the “Administrative Review Act” apply to decisions by the Superintendent of Public Instruction under said section 22-19.

The trial court allowed the defendant’s motion to dismiss the complaint on the ground that plaintiff had failed to exhaust his administrative remedy under the terms of said section 22-19 referred to. During the course of the appeal, it became apparent that a case was pending in the Supreme Court of the State of Illinois which involved two issues which would be determinative of this cause (Tometz v. Board of Education, 39 Ill2d 593, 237 NE2d 498). In that case, a question was raised as to the constitutionality of the Armstrong Act, and an issue was also raised specifically as to whether a plaintiff is required to exhaust the administrative remedies specified in said section 22-19, chapter 122 of the statutes referred to before filing actions for enforcement of the Armstrong Act. The record discloses that both issues of constitutionality and the question of exhaustion of administrative remedy as a requirement, prior to institution of an action of the character now before us, were raised in the Tometz case. The trial judge concluded that the provision of section 22-19 was not an administrative remedy which could be used to enforce the Armstrong Act since the Superintendent of Public Instruction had no power to grant the relief sought. The trial judge based his conclusion on the language of the case of McNeese v. Board of Education, 373 US 668, 10 L Ed2d 622, 83 Sup Ct 1433. Action was deferred in the cause now before us and the parties delayed filing briefs in this court until after disposition of the Tometz case.

In the first opinion which was filed by the Illinois Supreme Court prior to rehearing, the Supreme Court declared that the Armstrong Act was unconstitutional. Following filing of petition for rehearing and other briefs, the Supreme Court of this State held that the Armstrong Act was constitutional (Tometz v. Board of Education, 39 Ill2d 593, 237 NE2d 498). The opinion however, makes no mention of the issue of exhaustion of the administrative remedy either in the majority opinion or in the dissenting opinion in such case.

The appellee school district in this cause contends that the School Code explicitly provides for a complete administrative manner of attacking the discrimination problem and that such procedure is outlined in section 22-19 of the Act herein referred to. It is argued that the Superintendent of Public Instruction has special knowledge in the field and that it was the legislative intent to require that the administrative procedure be followed before there is resort to the courts. A long series of precedents is cited that a party must first use the administrative remedies provided in the Illinois School Code before instituting legal action under the Code. This principle is not disputed by the appellant (Bright v. City of Evanston, 10 Ill2d 178, 139 NE2d 270). It is further contended that the administrative remedy provided for in such code is an effective remedy which can supply the relief requested by plaintiff if his claim was proven to be meritorious. In this connection it is contended that McNeese v. Board of Education, supra, is authority merely for the principle that a party need not exhaust State administrative remedies when a proceeding is instituted for violation of Federal Constitutional rights. It is thus asserted that McNeese is no precedent as to actions involving State Statutes such as the Armstrong Act. It is also pointed out that, in reviewing the history of the passage of the Armstrong Act of 1963, the administrative procedure portion was adopted in 1961, and was originally introduced as a companion bill even though the Armstrong Act did not become effective until two years later due to the problem of wording (a change from “promotion of integration” in the 1961 proposed act to “prevention of segregation” in the 1963 act which was adopted). It is argued vigorously that the legislature intended that the administrative procedure be followed as a required initial procedure since section 10-21.3 (Armstrong Act) and section 22-19 were originally considered together. It is also asserted that the administrative procedure is the soundest and fairest way to deal with a segregation problem since the Superintendent of Public Instruction has special knowledge in the area which a court would not normally have.

The appellants in the cause before us, however, contend that (1) it was not the legislative intention that the Superintendent of Public Instruction was to oversee or even coordinate efforts of the various school boards in their efforts to desegregate schools within their particular districts; (2) that nothing in the Armstrong Act or the procedure section suggests the legislative intention to have the Superintendent of Public Instruction coordinate and proceed to assure racial balance throughout the entire State, but that the Act requires that school boards, not the Superintendent, take such affirmative action and that the Superintendent may act only when a complaint is filed and, finally, (3) that the Tometz decision by the Supreme Court of the State of Illinois, which held the Armstrong Act constitutional after two full reviews (in view of the fact that the trial court in that case denied the defendant school board’s motion to dismiss on the ground of failure to exhaust the administrative remedy), is authority for reversal of this cause. It is asserted that the decision in the Tometz case, even though the Supreme Court made no mention of any such requirement, obviously was based upon consideration of the total record and, therefore, that there is no requirement that the action with respect to desegregation must first be instituted under the agency of the Superintendent of Public Instruction of this State pursuant to section 22-19. It is argued that practicalities and technical data possessed by the various school districts in their own particular locales is a sounder argument for allowing them to administer any desegregation plan rather than having to place such problems in the hands of the Superintendent of Public Instruction who would not have at his disposal the information as to the unique problems of each district. Appellees contend that the courts are in an even less favorable position to direct desegregation under the Act.

The appellants in this cause do not quarrel with the basic principle which requires that administrative remedies which are effective must first be exhausted before direct action is taken in the courts. It is contended, however, that plaintiff need not exhaust administrative remedies when the administrative remedies cannot grant the relief sought by a plaintiff. It is asserted that no administrative remedies were in fact granted by the Act since the Superintendent of Public Instruction has no power to grant the requested relief.

Without passing on the merits of the respective contentions, we do not believe we are in a position to ignore the Supreme Court decision in the Tometz case referred to. Unfortunately, the Supreme Court did not express any conclusion specifically on the issue before us. The issue was, however, directly presented to the Supreme Court on the basis of the record which has been made available to us, and, as a consequence, we must presume that since the Supreme Court affirmed the action of the trial court in that case, it agreed with the conclusion that section 22-19 did not provide the exclusive remedy which must be pursued prior to any action in the courts of this State to enforce the Armstrong Act. Our position, however, is such that we must adhere to the Tometz decision and the apparent conclusions of the Supreme Court in that case. If a different conclusion is to be rendered on the issue of requirement of exhaustion of administrative remedies pursuant to the section referred to, such issue will be required to be determined by the Supreme Court.

The order of the Circuit Court of Will County is, therefore, reversed and cause is remanded to such Court with directions to vacate the order of dismissal and to proceed in such cause in accordance with the view expressed in this opinion.

Reversed and remanded with directions.


author: JUSTICE RYAN.

text:
    Sharon Cassiani, Plaintiff-Appellant, v. Michael Rogers, Defendant-Appellee.
    Gen. No. 68-66.
    Third District.
    March 26, 1969.
    Winstein & Kavensky, of Rock Island, for appellant; Charles Ferguson, of Rock Island, for appellee.
   Opinion by

JUSTICE RYAN.

Not to be published in full.