author: MR. JUSTICE CLARK

text:
    (Nos. 50314, 50326 cons.
    SANFORD KERNS, Appellee and Appellant, v. GUSTAV ENGELKE et al. (Koehring Company, d/b/a Fox River Tractor Company, Appellant and Appellee).

      Opinion filed May 24, 1979.

      Pratt, Pierce, Bradford & Gitchoff, Ltd., of East Alton (John T. Pierce, Jr., of counsel), for Fox River Tractor Company.
    Burton C. Bernard and William G. Kaseberg, of Bernard & Davidson, of granite City, for Timmerman Implement Company.
    Hoagland, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for Sanford Kerns.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The plaintiff, Sanford Kerns, was severely injured in the course of his work as an employee of Gustav and Leola Engelke, doing business as Engelke Dairy Farms. In the circuit court of Madison County, jury verdicts, awarding the plaintiff $225,000 in damages, were returned against all the defendants: the Engelkes, on the basis of negligence; and Fox River Tractor Co. (the manufacturer of the forage blower involved in the injury) and Melvin Timmerman (the retailer doing business as Timmerman Implement Co.) on the basis of strict liability in tort. In a counterclaim, Timmerman received a judgment for indemnity “plus a reasonable sum for legal fees, court costs and other expenses of defense” against Fox River. The appellate court affirmed. However, it remanded for a precise determination of the amount owed Timmerman, and found a “loan receipt agreement,” entered into between the plaintiff and the Engelkes subsequent to the trial court judgment, void. (54 Ill. App. 3d 323.) We allowed (65 Ill. 2d R. 315) and consolidated the separate appeals of the plaintiff and Fox River.

The plaintiff lost an eye when struck by a wire, apparently used to hold temporarily in place the power takeoff assembly of a “long-hopper” forage blower while the blower was being moved. The forage blower is used to convey, by means of blowing up a long, tubular pipe, silage into a silo. The blower here, owned by the Engelkes, sold by Timmerman and manufactured by Fox River, consisted of several main parts: a hopper into which the silage is fed, and which carries the silage to the blower and spout; a blower mechanism by means of which the silage is forced up the spout and into the silo or storage bin; the spout; wheels and a tractor hitch for transit; and the power takeoff assembly, an arm-like mechanism which is hooked up to the power takeoff of a tractor and provides the power for the blower. When the forage blower is moved to another location, the power takeoff assembly must be detached from the tractor so the tractor can be connected to the hitching tongue of the blower. The power takeoff assembly is designed in such a way that during movement it must be entirely removed, and placed in the rectangular hopper or carried separately; otherwise it will drag on the ground. Testimony showed that the Engelkes did not remove the power takeoff assembly from the blower but, for convenience, simply tied or wired the unconnected or tractor end to the blower while the blower was in transit. Each end of the power takeoff assembly is equipped with a “quick disconnect” button for attachment and removal. Testimony also showed that the blower was not equipped with any device to carry or cradle the power takeoff assembly while in transit. Plaintiff’s injury occurred as he was helping to connect the power takeoff assembly to the tractor. The wire holding the assembly was loosened or removed. While Charles Engelke, son of the farm owners, backed the tractor up to the assembly for connection, the plaintiff held the assembly off the ground. The wire hit him in the eye while he was holding the power takeoff assembly. There was also testimony that no warning, apropos of danger that might result by failing to remove the power takeoff assembly for purposes of moving the blower, was placed on the blower; and that it was common practice, for convenience, to secure by “tying up” the tractor end of the assembly to the blower during transit.

In its appeal, Fox River first contends that the plaintiff failed to state a cause of action and that the jury was improperly instructed because the plaintiff did not allege that the product itself was unreasonably dangerous. Rather, the argument continues, the plaintiff maintained that the forage blower was unreasonably dangerous only because it lacked a device to hold or secure the power takeoff assembly while it was being moved. This necessitates, Fox River concludes, pleading and proving that an “alternative design” was feasible under the state of the art at the time the blower was manufactured, and the plaintiff failed to do so. The parties do not dispute that the plaintiff’s injury was due to the product’s condition which existed at the time the forage blower left Fox River’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623.) The question before us is whether that condition — lack of a device to hold or secure the power takeoff assembly while the blower was being moved — was properly determined to be an unreasonably dangerous defect in design. (Defect in design, like defect in manufacture, is a basis for strict liability in tort. (Wright v. Massey-Harris, Inc. (1966), 68 Ill. App. 2d 70, 79; 2 J. Dooley, Modern Tort Law 294 (1977) (hereafter Dooley); W. Prosser, Torts 644 (4th ed. 1971). See also Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 420, 431.))

The appellate court rightly points out that, in cases of strict liability, “focus is on the product,” not the conduct. (54 ÜI. App. 3d 323, 329.) In holding that Fox River’s argument and the “state of the art” defense have no place in the instant case, the appellate court relied on Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443. We believe that reliance is not quite correct. In Cunningham, a patient contracted serum hepatitis from defective blood. This court decided the hospital was liable, even though medical science could not determine the presence of the serum hepatitis virus in the blood, because such a defense would weaken the doctrine of strict liability. The case is distinguishable since there the product itself was unreasonably dangerous. Here the allegation is that the lack of a securing device for the power takeoff assembly made the product not reasonably safe, and that is a factual issue that must be determined by the fact finder. (Our reasoning may not be interpreted as limiting Cunningham, nor as “signaling] a return to a negligence theory.” (47 Ill. 2d 443, 453.)) On the other hand, we do not adopt Fox River’s argument. Fox River maintains that our law for cases of defective design is that a plaintiff must plead and prove alternative design and its feasibility, which the plaintiff failed to do here. Fox River cites Lolie v. Ohio Brass Co. (7th Cir. 1974), 502 F.2d 741, 744, which held that “the plaintiff must establish that the ‘product in question has [not] lived up to the required standard of safety.’ [Citations.] This, of course, requires proof that, inter alia: 1) the product as designed is incapable of preventing the injury complained of; 2) there existed an alternative design which would have prevented the injury; and 3) in terms of cost, practicality and technological possibility, the alternative design was feasible. Evidence of post-occurrence change which tended to satisfy plaintiff’s burden on any of these issues would, therefore, be relevant.” Lolie so held on the basis of two cases from our appellate court. In the first case, Wright v. Massey-Harris, Inc. (1966), 68 Ill. App. 2d 70, the plaintiff, a farm employee, was injured while manually trying to extract an ear of corn which was jammed in the shucking rollers of a self-propelled corn picker. He alleged that the lack of a shield over the rollers was dangerously defective. While Wright was pending in the appellate court, this court decided Suvada (32 Ill. 2d 612), so the Wright court held:

“The present case involves a claimed defect in design rather than a defect in manufacture and we interpret Suvada to mean that the strict liability imposed upon a manufacturer includes injuries which arise from defects in design as well as defects in manufacture.
Whether the design defect in the present case is of a nature upon which liability can be imposed involves the factual question of whether it creates an unreasonably dangerous condition, or, in other words, whether the product in question has lived up to the required standard of safety.
We believe that the complaint in the present case states a good cause of action in negligence and also a good cause of action in strict liability if we treat all of the allegations in excess of those required by Suvada as surplusage.” (68 Ill. App. 2d 70, 79.)

Wright demonstrates that the plaintiff must present pertinent evidence, such as an alternative design which is economical, practical and effective, to the fact finder, who determines whether the complained-of condition was an unreasonably dangerous defect. This, we believe, is what Sutkowski v. Universal Marion Corp (1972), 5 Ill. App. 3d 313, 319, also stands for:1

“In the development of product’s liability principles design alternatives are appropriately considered whether reasonable care is the basis of liability or where liability is predicated upon strict tort liability. [Citation.] In both cases it appears that policy considerations are involved which shift the emphasis from the defendant manfacturer’s conduct to the character of the product. Such change in emphasis furnishes additional reasons for permitting evidence of alternative designs in a strict tort liability case.
The possible existence of alternative designs introduces the feature of feasibility since a manufacturer’s product can hardly be faulted if safer alternatives are not feasible. In this connection feasibility includes not only the elements of economy, effectiveness and practicality but also the technological possibilities viewed in the present state of the art. If the feasibility of alternative designs may be shown by the opinions of experts or by the existence of safety devices on other products or in the design thereof we conclude that evidence of a post occurrence change is equally relevant and material in determining that a design alternative is feasible.”

Neither Lolie, Wright nor Sutkowski holds that a plaintiff must plead alternative design, as Fox River argues. Whether Lolie, which holds that a plaintiff must prove alternative design, correctly states our law is a question which does not have to be answered here. The plaintiff proved, as he must, to the satisfaction of the fact finder, the unreasonably dangerous nature of the defect in design; and here he did so by presenting pertinent evidence such as feasible alternative design. See Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 368.

The plaintiff’s pleading and proof, and the court’s instruction here, were sufficient for the jury to find for the plaintiff. His complaint alleged “faulty engineering design for the disconnection” mechanism of the power takeoff assembly, and an amendment to his first amended complaint alleged the forage blower “was not equipped with any type of mechanism to hold the power take-off shaft off the ground when the machine was being moved.” The complaint sufficiently alleged a cause of action on the basis of defective design. Evidence, in the form of testimony by Dr. Norval Wardle, an agricultural safety engineer who is retired from Iowa State University and does full-time consulting work, supports the view that economical, practical and effective alternate designs for holding or securing the power takeoff assembly were feasible at the time the forage blower was purchased. He described several simple, possible devices. A review of the record — that is, of the evidence of alternate designs and of the given instructions — supports the circuit court’s judgment that the lack of a securing device for the power takeoff assembly was not reasonably safe. Finally, we find that Fox River’s instruction, given over the plaintiff’s objection, correctly apprised the jury of the law:

“There is no duty upon the manufacturer of the forage blower to manufacture the product with a different design, if the different design is not feasible. Feasibility includes not only elements of economy, effectiveness and practicality, but also technological possibilities under the state of the manufacturing art at the time the product was produced.”

Before we can definitively say the jury correctly determined Fox River’s liability for defective design, we believe one other consideration, in tandem with that issue,

is necessary. That consideration is whether the use of something extraneous (the wire to secure the power takeoff assembly), which causes the injury but is not a part of either the product or its design, is a reasonably foreseeable misuse. (See Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 425; Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 102; Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 81, 83-84.) This is a question of fact (Winnett v. Winnett (1974), 57 Ill. 2d 7, 13) which is measured by an objective standard (Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 369). If the use of a product “is abnormal, but nonetheless one that may be anticipated, it may be foreseeable.” (2 Dooley 360.) There “is a distinction between the intended use and the foreseeable use, and *** where a particular use should be known to the reasonably prudent manufacturer

such use cannot be labelled unforeseeable.” (Dunham v. Vaughan & Bushnell Mfg. Co. (1967), 86 Ill. App. 2d 315, 328, aff’d (1969), 42 Ill. 2d 339.) We believe that law is closely akin to the facts in this case, and that foreseeability may be reasonably attributed to the manufacturer here. The power takeoff assembly of the blower weighs about 60 pounds and is designed to fit rather snugly onto both the blower and tractor. To connect or disconnect one end of the assembly, or to remove it entirely, requires some effort. Dr. War die testified the “most usual way I have seen” the assembly “handle [d] ” is by tying it “up in some manner with a cord, string, rope, wire, what have you *** as securely as they can do to the machine and then they can move it.” Timmerman, the defendant retailer, confirmed this by stating that local custom for solving the “dangling” assembly while moving the long-hopper blower involved three alternative methods: removing the assembly entirely, removing half of it by taking it apart, or tying the loose end of the assembly to the blower. “[T] he simplest way in most cases,” he testified, “is by wiring it up.” Timmerman further conceded that he “wired it up” when he had to move the blower, and that some “short-hopper” blowers were equipped with a “cradle device” to hold the assembly. Fox River’s expert denied that “tying” or “wiring up” the assembly of a long-hopper blower was customary or foreseeable. We agree with the appellate court that there was sufficient evidence for the jury to conclude the “misuse” was reasonably foreseeable.

Our decision must not be construed as holding that the absence of the “safest” design is unreasonably dangerous as a matter of law. A manufacturer is not required to produce a product which represents the “ ‘ultimate in safety’ ” (Warner v. Kewanee Machinery & Conveyor Co. (6th Cir. 1969), 411 F.2d 1060, 1066, cert. denied (1970), 398 U.S. 906, 26 L. Ed. 2d 65, 90 S. Ct. 1685, see Day v. Barber-Colman Co. (1956), 10 Ill. App. 2d 494, 508.) Rather, we premise liability on our finding that not only does the evidence support the jury’s conclusion that a safer, economical and feasible design existed, but it also supports the conclusion that safe use of Fox River’s design was impractical, resulting in a foreseeable misuse. Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 369.

Fox River’s second contention is that the courts below erred in giving attorney’s fees to Timmerman, the retailer. Timmerman successfully counterclaimed for indemnification against Fox River. Fox River does not raise any question regarding that judgment except for the litigation expenses which the appellate court affirmed (but remanded for an accurate determination of them). The law in Illinois clearly is that absent a statute or a contractual agreement “attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party.” (Ritter v. Ritter (1943), 381 Ill. 549, 553. Accord, Meyer v. Marshall (1976), 62 Ill. 2d 435, 442; House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 51-52.) The appellate court distinguished the instant case from Ritter and the general proposition above in that the attorney’s fees here were the result of defending a prior action which gave rise to the indemnity claim. Although some authorities agree with the Appellate Court for the Fifth District (e.g., D. Dobbs, Remedies 196 (1973), and 42 C.J.S. Indemnity sec. 24 (1944)), we note that other districts of the Illinois appellate court do not (Insurance Co. of North America v. J. L. Hubbard Co. (4th Dist. 1974), 23 Ill. App. 3d 254, 261-63; Reese v. Chicago, Burlington & Quincy R.R. Co. (2d Dist. 1972), 5 Ill. App. 3d 450, 457-58, aff’d (1973), 55 Ill. 2d 356). We are not persuaded we should create an indemnity exception to the Ritter holding even under the circumstances of this case in which Timmerman gave Fox River sufficient notice, and was ostensibly entitled to indemnification. Timmerman was properly sued as a defendant strictly liable; and that Timmerman was successful in the indemnity action is not a distinction sufficient to remove him from the ruling in Ritter. Hence, we reverse the appellate court on this issue.

In his appeal, the plaintiff argues that not only was the “Loan Receipt and Agreement” (hereafter loan agreement), entered into after entry of judgment, proper, but the question of its validity was improperly before the appellate court for review. By the agreement, the Engelkes and their insurance company would loan $100,000, interest free, to the plaintiff, who was obligated to repay the sum “from any amounts collected from” Timmerman and Fox River. (Timmerman is not involved in plaintiff’s appeal.) The trial court allowed the Engelkes’ motion for judgment notwithstanding the verdict. Subsequently, both Timmerman and Fox River filed amendments to their post-trial motions asking the trial court to determine that the $100,000 loan was partial satisfaction or should be considered a setoff. The trial court entered another order, which noted that “the defendants Engelkes have paid to plaintiff $100,000 in return for a so called [sz'c] loan receipt and plaintiff in turn confesses defendants Engelkes’ post-trial motion,” and which reiterated judgment notwithstanding the verdict in favor of the Engelkes. The trial court also entered an order denying the post-trial motions of Fox River and Timmerman.

The plaintiff contends that the question of the validity of the loan agreement was improperly before the appellate court. Plaintiff reasons, rather vaguely, that after the judgment Fox River and Timmerman “should have filed an affirmative pleading to which responsive pleadings would have been filed.” We find no merit in this contention. Since the loan agreement was made subsequent to the judgment, and the trial court initially ordered judgment notwithstanding the verdict in favor of the Engelkes, ostensibly based on the loan agreement, the defendants properly — perhaps without much choice — raised their objections in the post-trial motions. The trial court, as it “must[,j rule[d] upon all relief sought in all post-trial motions” (Ill. Rev. Stat. 1973, ch. 110, par. 68.1(6)); it denied the motions. The record contains sufficient information for the appellate court to have reviewed the issue of the validity of the loan agreement. (See Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 450, where this court reviewed the issue of validity of a loan agreement made after the appellate court reached its decision but before this court granted leave to appeal. See also 58 Ill. 2d R. 366(a)(5), (b)(1), (b)(2)(iii).)

The plaintiff suggests that the appellate court misapprehended the State’s public policy by holding the loan agreement in this case void. We do not agree. In Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 361-63, this court, with three judges dissenting, upheld the validity of a loan agreement which had been executed prior to trial. (Accord, Luckenbach v. W. J. McCahan Sugar Refining Co. (1918), 248 U.S. 139, 63 L. Ed. 170, 39 S. Ct. 53. See Annot., 62 A.L.R.3d 1111 (1975); 1 Dooley 559-61.) The Reese majority expressed its concern that, despite the bar against contribution or the want of the right of indemnity in a particular case, a loan agreement permitted a joint tortfeasor to accomplish “by indirection” what he was not permitted to do directly. (Since then Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, has held that contribution among tortfeasors is permissible.) This court felt, however, that loan agreements were appropriate because the savings, due to private settlements which avoided perhaps complex litigation, might be offered to a plaintiff more readily. Moreover, the majority concluded adequate protections existed if the remaining defendants were able to cross-examine witnesses for possible bias, and if the loan agreement could be introduced to the jury for its consideration. Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 364.

The use of loan agreements is not unlimited, however. In Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, this court found the loan agreement there, entered into during trial but not discovered until the case had been appealed to the appellate court, invalid. Gatto held that despite the “safeguards” Reese set out, those safeguards “cannot be utilized if the loan agreement is kept secret.” (61 Ill. 2d 513, 523.) “After Gatto and Reese it can now definitely be said that in Illinois if a ‘Mary Carter’ agreement [i.e., a loan agreement] is entered into between any of the parties to a given lawsuit the agreement must be revealed and it can be used for purposes of impeachment and introduced into evidence for consideration by the jury with an instruction on the limited effect of its admission if requested.” (Michael, “Mary Carter” Agreements in Illinois, 64 Ill. B.J. 514, 521 (1976) (hereafter Michael).) In Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 451-52, this court, as the plaintiff here correctly observes, stated that a loan agreement, entered into between plaintiff Harris and defendant Commonwealth Edison after the appellate court rendered its decision but before this court granted leave to appeal, did not provide Edison with the standing to challenge a judgment n.o.v. in favor of another defendant. (Only Edison petitioned for leave to appeal, although Harris sought to join Edison in its reply brief.) However, that is not all this court stated:

“Edison has also suggested that the ‘loan agreement’ affords a basis for its challenge to the judgment n.o.v. Edison equates the ‘loan agreement’ to that approved by a majority of this court in Reese v. Chicago, Burlington & Quincy R.R. Co., 55 Ill. 2d 356. Examination of our opinion in that case clearly shows that the ‘loan agreement’ was made prior to trial before liability of the multiple defendants could be adjudicated. There is no language contained therein which fairly suggests that such a procedure would be approved on appeal to provide a sole basis whereby a defendant, who is alleged to be a joint tortfeasor and against whom liability is determined, might seek consideration of an issue previously decided adversely to the plaintiff in his action against a co-defendant. Acquiescence to Edison’s position under such circumstances would be tantamount to this court’s approval of an assignment of a personal injury judgment on appeal to a party who has been found liable for the injury and who does not now even contest this liability. ” (Emphasis added.) (Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 451-52.)

This suggests, and we make explicit, that the use of loan agreements is proper only where judgment has not been reached. We assume, of course, the agreement was entered into in good faith. Michael, 64 Ill. B.J. 514, 526-28.

The plaintiff also argues that he “had the right to enforce the judgments as against any of the joint tortfeasors to his liking.” This is true, but it is not an unrestricted right. (See Chmielewski v. Marich (1954), 2 Ill. 2d 568, 571.) Our comments above, as well as the quoted portion of Harris above, demonstrate a justification for such a restriction. (E.g., a defendant should not be able to get around the bar to indemnification, where he may not be entitled to it, because of acquiescence or agreement by a plaintiff. See also the comments of the dissent in Reese (55 Ill. 2d 356, 367).) In short, we agree with the analysis of the appellate court: the loan agreement is void here and the money advanced to the plaintiff is a partial satisfaction of plaintiff’s judgment.

For the reasons stated, the judgment of the appellate court, except as to the issue of attorney’s fees, is affirmed. The judgment of the circuit court is affirmed except as to that part of the judgment awarding Timmerman attorney’s fees, court costs, and “other expenses of defense.”

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 50675.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JEFFREY VANCE, Appellee.

      Opinion filed May 24, 1979.

      William J. Scott, Attorney General, of Springfield, and Ronald C. Dozier, State’s Attorney, of Bloomington (Donald B. Mackay, Melbourne A. Noel, Jr., and Timothy B. Newitt, Assistant Attorneys General, of Chicago, and James E. Hinterlong and John X. Breslin, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Marc Barnett, Marvin J. Glass, and Charles K. Piet, of Barnett, Ettinger, Glass, Berkson & Braverman, Ltd., of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On December 4, 1974, an indictment was returned in the circuit court of McLean County charging Jeffrey M. Vance, defendant herein, with the unlawful delivery of less than 30 grams of lysergic acid diethylamide (LSD). Following allowance, in January 1975, of defendant’s motion for substitution of judges because of the alleged prejudice of the original trial judge, the case was assigned to Judge Luther H. Dearborn. Thereafter various motions, including the substitution of counsel for defendant, were allowed, and, following a number of continuances of prior trial settings, the case came on for trial on July 22, 1976. On that morning defense counsel presented a motion under section 114 — 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. St at. 1975, ch. 38, par. 114 — 5(c)). This motion alleged the prejudice of Judge Dearborn and requested trial before a different judge.

It was further alleged that Judge Dearborn had presided at an earlier trial of defendant on an unrelated drug-delivery charge in which defendant had been sentenced to the penitentiary, and which was then on appeal. Defendant’s conviction in that case was subsequently affirmed by the appellate court in 1977, but the sentence was reversed and the cause remanded for resentencing by a different judge. (People v. Vance reported sub. nom. People v. Honn (1977), 47 Ill. App. 3d 378.) The sentence reversal in that case was said by the appellate court to be necessitated by what it characterized as Judge Dearborn’s overwhelming concern “with the severe societal problem caused by the use and transfer of drugs and not with the particular circumstances presented in these individual cases.” (47 Ill. App. 3d 378, 385.) The motion further alleged that the judge was prejudiced against him, and that defendant belonged to a class of defendants particularly disfavored by Judge Dearborn, who, it was alleged, had never, in the absence of a plea agreement, sentenced a defendant convicted of possession or delivery of a controlled substance to other than a penitentiary term. It is further alleged that in the earlier trial Judge Dearborn had questioned defendant’s honesty.

The motion for substitution of judges was denied. Since defendant had, more than a year earlier, and after Judge Dearborn’s assignment to his case, waived a jury trial, a bench trial ensued in which defendant was found guilty and sentenced to 22 to 66 months’ imprisonment, to be served concurrently with the case then on appeal.

In a Rule 23 order (58 Ill. 2d R. 23), a divided appellate court held the motion for substitution should have been allowed. (56 Ill. App. 3d 1122.) It reversed the conviction, stating that while “the mere fact of a defendant’s prior conviction before a certain judge is not necessarily cause for recusal in a later case,” the trial judge here “was shown to have a particular prejudice against defendants in drug delivery cases and was shown to have abused his sentencing discretion on a prior drug conviction of this very defendant. Those circumstances warrant substitution for cause.” The dissenting member was of the opinion that no prejudice on the issue of guilt or innocence had been shown, and that it was unnecessary to remand for a new trial.

The fundamental problem with the appellate court majority’s disposition of this case is its remandment for a new trial. The appellate court in the earlier case apparently did not regard what it characterized as Judge Dearborn’s serious abuse of sentencing discretion in a category of cases he “disfavored” (People v. Pinchott (1977), 55 Ill. App. 3d 593, 598) as inhibiting his ability to fairly determine defendant’s guilt, for it affirmed defendant’s conviction, remanding only for resentencing. Now, however, the appellate court majority seemingly concludes that the trial judge could not fairly determine defendant’s guilt or innocence in this case.

As earlier noted, defendant’s motion for substitution was predicated upon section 114 — 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 5(c)), which provides:

“(c) In addition to the provisions of subsections (a) and (b) of this Section any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.”

When asked by the judge whether he desired to introduce evidence in support of the motion, defense counsel offered only a transcript of the earlier trial, referred to Judge Dearborn’s imprisonment of drug offenders, the absence of aggravation in the earlier case, and the judge’s denial of a stay of mittimus or bond pending appeal as indicative of prejudice against this class of offenders and against defendant himself.

We digress momentarily to comment upon the fact that defendant voluntarily elected to waive a jury trial shortly after the case was assigned to Judge Dearborn more than a year earlier. It seems odd that defendant would choose to have his guilt or innocence determined by a judge who, defendant now asserts, was then manifesting a prejudice against all persons charged with drug-related offenses. Additionally, it seems to us that the motives for delaying, until the morning of trial, presentation of a motion to disqualify a judge assigned to the case more than a year earlier might well be suspect, particularly when, as here, the grounds alleged for disqualification are not newly discovered. Since the motion was not objected to on these grounds, however, we consider its merit.

It is clear that ordinarily the fact that a judge has ruled adversely to a defendant in either a civil or a criminal case does not disqualify that judge from sitting in subsequent civil or criminal cases in which the same person is a party. (Annot., 21 A.L.R.3d 1369 (1968); 48 C.J.S. Judges sec. 82 (1947); People v. Jones (1971), 48 Ill. 2d 410, 413; Merkie v. People (1959), 15 Ill. 2d 539, 546; People v. Pinchott (1977), 55 Ill. App. 3d 601, 602.) The appellate court has repeatedly indicated that the burden of establishing actual prejudice rests on the defendant, and the trial court need not justify retaining the case (People v. Nickols (1976), 41 Ill. App. 3d 974, 979, and cases there cited), and this court has said that the trial judge is ordinarily in the best position to determine whether he has been prejudiced (People v. Polk (1973), 55 Ill. 2d 327, 336). The lack of unanimity among the Fourth District Appellate Court judges on the disqualification question is highlighted by the fact that while a divided court in this case reversed because Judge Dearborn did not allow the motion for substitution of judges, a differently composed but also divided panel affirmed a conviction involving his denial of a similar motion in People v. Pinchott (1977), 55 Ill. App. 3d 601.

To conclude that a judge is disqualified because of prejudice is not, of course, a judgment to be lightly made. It will be viewed by some as reflecting unfavorably upon the judge, and it tends to disrupt the orderly functioning of the judicial system. (United States v. Valenti (D.N.J. 1954), 120 F. Supp. 80.) As was said in Cox v. United States (8th Cir. 1962), 309 F.2d 614, 619, quoting from In re J. P. Linahan, Inc. (2d Cir. 1943), 138 F.2d 650:

“The human mind, even at infancy, is no blank piece of paper. We are born with predispositions; and the process of education, formal and informal, creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices.”

Every human is, consciously or subconsciously, partial to some degree in that he is influenced by the habits he has been trained in, the experiences he has had, occupationally or otherwise, the people with whom he associates, the area in which he lives and the innumerable unrecognized factors which subconsciously affect every individual’s philosophy. As Cardozo said: “Deep below consciousness are other forces, the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.” (B. Cardozo, The Nature of the Judicial Process 167 (1921).) This, however, is nothing more nor less than one of the characteristics of human nature. The most that ought to be expected is that the judge will recognize that he has basic predilections and make a conscientious effort to set them aside and give dispassionate consideration to the case before him. More than that can scarcely be expected of any individual.

We note that the trial judge here explained at some length his reasoning in denying the motion.

“THE COURT: Well, with regard to the Defendant specifically, it is correct that there was a previous trial conducted by this Court involving the Defendant in this case and in which there was a conviction and which resulted in the Defendant being sentenced. From that particular circumstance, however, the Court would indicate at this time insofar as the Court is concerned that previous matter has no bearing whatsoever on this particular incident that is scheduled for trial today.
The Court has no opinion as to the guilt or innocence of the Defendant with respect to the charge that is scheduled for trial today. The Court feels that the matters referred to by Defense Counsel in the transcript do not support the allegation of this Motion presented today contained in paragraph 3(f), and that there in fact was no indication by the Court in the previous proceeding that the Court questioned the Petitioner’s honesty.
The Court has no acquaintanceship with the Defendant, other than by virtue of Court proceedings. The Court has no knowledge of the facts or evidence with respect to this case, 74 CF 689. And the Court feels that it can be said that the Court harbors no prejudice or feeling of ill will against the Defendant because of the previous case or for any other reason.
With respect to the general allegations contained in paragraph 3 of the Motion, the Court assumes that the conclusions in sub-paragraphs (b) and (c) of paragraph 3 are derived from what is set out in paragraph (d) of paragraph 3. Paragraph (d), the Court might indicate first, is inaccurate, and further the Court harbors no prejudice or ill will against this Defendant or against any class of Defendants charged with any particular offense.
In considering this matter as objectively as I feel I can, it is my personal belief that the Defendant can and would receive a fair trial and the evidence would be judged fairly and without regard to any previous case of the Defendant or without regard to any of the conclusions or opinions set out in the Motion for Substitution. That would be the Court’s feeling that the Motion for Substitution of Judge should appropriately be denied and is denied.”

The fact that a judge believes the evidence in a case establishes the guilt of a defendant beyond a reasonable doubt and so holds is, of course, no indication that the judge is prejudiced against that defendant. Nor is the denial of probation and imposition of a sentence of imprisonment to be interpreted as indicative of personal prejudice against a specific defendant such as would disqualify the sentencing judge from determining that defendant’s guilt or innocence in a later case. To hold otherwise would unnecessarily complicate the trial of remanded cases and recidivists, for a judge would be limited to a single trial of defendants convicted before him. King v. State (1965), 216 Tenn. 215, 391 S.W.2d 637.

Something more than presiding at an earlier conviction and the subsequent denial of probation, or even that probation is usually denied in such cases, is necessary before a judge may be considered disqualified from hearing subsequent cases involving the same defendant. The frequent denial of probation in a particular type of case is no greater proof of prejudice against an individual than is the frequent grant of probation in such cases proof of prejudice against the State. Reviewing court judges should be chary of condemning as motivated by prejudice those actions of trial judges which may represent only a difference of opinion as to the seriousness of a particular offense in the context of community conditions. (Craven v. United States (1st Cir. 1927), 22 F.2d 605.) It is that “something more” — a showing of animosity, hostility, ill will, or distrust towards this defendant — which is lacking here. In its absence the proof falls short of establishing the actual prejudice which would interfere with a fair determination of defendant’s guilt or innocence. (See cases collected in United States v. Valenti (D.N.J. 1954), 120 F. Supp. 80; Knapp v. Kinsey (6th Cir. 1956), 232 F.2d 458, 466; United States v. Baker (M.D. Tenn. 1977), 441 F. Supp. 612, 616; Andrews, Mosburg, Davis, Elam, Legg & Bixter, Inc. v. General Insurance Co. of America (W.D. Okla. 1976), 418 F. Supp. 304, 306-07; Duplan Corp. v. Deering Milliken, Inc. (D. S.C. 1975), 400 F. Supp. 497, 516; United States v. Nehas (W.D. Penn. 1973), 368 F. Supp. 435, 437; United States ex rel. Rogers v. Richmond (D. Conn. 1958), 178 F. Supp. 44, 46; United States v. Gilboy (M.D. Penn. 1958), 162 F. Supp. 384, 393-94.) There are cases1 reaching a different result, illustrative of which is United States v. Thompson (3d Cir. 1973), 483 F.2d 527.

While we have no difficulty in concluding that Judge Dearborn was not disqualified from determining defendant’s guilt or innocence, a more troublesome question is presented as to whether the sentence should stand, a question upon which we should pass even though the cause must be remanded to the appellate court. In People v. Perruquet (1977), 68 Ill. 2d 149, 153-54, this court reviewed numerous decisions and reemphasized our frequent observation that trial judges are normally better situated than courts of review to determine appropriate punishment, and that “the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” While application of that rationale and affirmance of the trial court’s sentence would be consistent with People v. Pinchott (1977), 55 Ill. App. 3d 601, in which we denied leave to appeal, and People v. Ward (1977), 49 Ill. App. 3d 780, leave to appeal was also denied by us in the earlier Honn cases, a fact apparently relied upon by those appellate court judges who continued to remand for resentencing those drug cases in which sentence was imposed by Judge Dearborn. (See People v. Pinchott (1977), 55 Ill. App. 3d 593, 598.) Our denials of leave to appeal, of course, carry no connotation of approval or disapproval of the appellate court action, and signify only that four members of this court, for reasons satisfactory to them, have not voted to grant leave. The fact is, however, that in view of the finality of the appellate court judgments in the earlier cases, it would be anomalous for us to now sustain the sentence in this case.

Because it held the recusal motion should have been allowed, the appellate court did not consider other alleged errors. We accordingly reverse the judgment of the appellate court and remand the cause to that court for the consideration of those alleged errors. In the event of affirmance of the guilty judgment, the cause shall be remanded to the circuit court of McLean County with directions that defendant be resentenced by a different judge.

Reversed and remanded, with directions.


author: MR. JUSTICE RYAN

text:
    (No. 51062.
    IMA SUE SCOTT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Tee Pak, Inc., Appellee).

      Opinion filed June 1, 1979.

      Robert Murphy, of Scheele, Murphy & Serkland, Ltd., of La Grange, for appellant.
    Richard W. Baum, of Chicago, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Ima Sue Scott filed a claim against her employer, Tee Pak, Inc., seeking compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) for a back injury she contends arose out of and in the course of her employment. The arbitrator ruled that she had failed to prove that she had suffered an accidental injury arising out of and in the course of her employment. The Industrial Commission, on review, heard additional evidence and affirmed the arbitrator. The circuit court of Cook County confirmed the decision of the Industrial Commission. The claimant contends in this court that the Commission’s decision is against the manifest weight of the evidence.

This case involves many of the time-worn issues, the resolution of which we have consistently stated lies within the province of the Industrial Commission. These include drawing inferences from the evidence, resolving conflicting testimony, determining the credibility of witnesses and deciding whether the claimant has met the burden of proof. It would serve no useful purpose to detail the evidence, which we have carefully reviewed. The decision of the Industrial Commission is not against the manifest weight of the evidence. We therefore affirm the circuit court of Cook County.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 50876.

      In re LAWRENCE WARREN THOMAS, Attorney, Petitioner.

      Opinion filed May 24, 1979.

      William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for petitioner.
    Jack Toporek, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

On March 21, 1973, this court allowed the motion of petitioner, Lawrence W. Thomas, licensed to practice law in 1957, to strike his name from the roll of attorneys. On February 22, 1977, pursuant to Supreme Court Rule 767 (65 Ill. 2d R. 767) petitioner filed a petition for reinstatement. A panel of the Hearing Board of the Attorney Registration and Disciplinary Commission, with one member dissenting, recommended that the petition for reinstatement be allowed. The Administrator filed exceptions, and the Review Board of the Attorney Registration and Disciplinary Commission recommended that the petition for reinstatement be denied.

Between 1962 and 1967 petitioner “purchased” personal injury cases from solicitors. During that period petitioner and Dr. George J. Pope, a physician to whom he referred clients, entered into an arrangement whereby petitioner guaranteed payment of two-thirds of the medical bills of those clients. In a 12-count indictment returned on December 21, 1967, petitioner and Pope were charged with using the mails to defraud several insurance companies. Six counts of the indictment were dismissed on the government’s motion, and Pope pleaded guilty to the remaining six counts. Petitioner was charged with sending fraudulent claims to insurance companies for damages sustained by his clients, including hospital and doctor bills for clients who had not been injured, and exaggerated medical reports. In a jury trial petitioner was found guilty. He was fined $5,000 and sentenced to probation for three years, the first 60 days of which were to be served in jail.

The Court of Appeals for the Seventh Circuit reversed and remanded because of the district court’s failure to investigate a charge that several jurors had brought into the jury room a newspaper article prejudicial to petitioner. (United States v. Thomas (7th Cir. 1972), 463 F.2d 1061.) Following remand the government moved to dismiss the indictment against petitioner, stating that the motion was made because of doubts that it would be able to present sufficient evidence to convict petitioner. The government stated in its motion that a further consideration in moving for dismissal of the charges was that petitioner had moved that his name be stricken from the roll of attorneys and that he not be allowed to apply for reinstatement for five years. This court had allowed the motion.

Before the Hearing Board, petitioner admitted that he had violated the then-applicable canons of professional ethics by purchasing cases from solicitors and by guaranteeing Dr. Pope two-thirds of the clients’ medical bills. Petitioner, however, adamantly denied his guilt in the mail fraud scheme. Petitioner testified that until the indictments were returned he was unaware that Dr. Pope was not actually rendering the treatment described in the reports and bills submitted to the insurance companies.

In its report recommending that the petition for reinstatement be denied, the Review Board found that petitioner continued to protest his innocence of mail fraud; that petitioner’s sworn statement that he had not misappropriated money held by him for third parties was “incredibly inaccurate”; that petitioner had failed to make “every conceivable effort toward restitution”; that petitioner “incredibly” testified at his hearing that he knew only the first names of the solicitors from whom he bought cases; and that petitioner was ignorant of the philosophical theory behind the ethical canons prohibiting solicitation. Petitioner’s lack of candor and contrition in these matters, the Review Board said, indicated that he was not sufficiently rehabilitated to practice law.

Disbarment, like other disciplinary sanctions, is imposed to maintain the integrity of the profession, safeguard the public and protect the administration of justice from reproach. (In re Smith (1976), 63 Ill. 2d 250, 256.) Although the rules of this court do not specifically define the criteria to be considered, the burden is on the petitioner to prove that he has been sufficiently rehabilitated and is a fit person to practice law. (In re Starr (1976), 64 Ill. 2d 407.) Noting the statement in the majority opinion of the court of appeals that the evidence at petitioner’s trial “was such that a jury could find guilt beyond a reasonable doubt,” and that the dissenting judge stated that “Defendant’s guilt is starkly apparent,” the Review Board held that, “Under these circumstances, petitioner simply cannot state that he was innocent and at the same time convincingly urge that he has been rehabilitated and is fit to practice law in an understandingly ethical manner.” We do not agree. In In re Hiss (1975), 368 Mass. 447, 333 N.E.2d 429, the Supreme Judicial Court of Massachusetts considered a similar absence of repentance on the part of a disbarred attorney seeking reinstatement. More than 20 years earlier, Hiss had been convicted on two counts of perjury; his conviction was affirmed on appeal, and he was sentenced to 3V2 years in a Federal penitentiary. He was subsequently disbarred. The court considered Hiss guilty as charged, despite his assertions of innocence, but refused to disqualify the petitioner for reinstatement solely because of his failure to repent.

“Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit. For him, a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard-retained scruples and, paradoxically, commit what he regards as perjury to prove his worthiness to practice law. Men who are honest would prefer to relinquish the opportunity conditioned by this rule: ‘Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt *** may be rejected, — preferring to be the victim of the law rather than its acknowledged transgressor-preferring death even to such certain infamy.’ Burdick v. United States, 236 U.S. 79, 90-91, [59 L. Ed. 476, 480, 35 S. Ct. 267, 269] (1915). Honest men would suffer permanent disbarment under such a rule. Others, less sure of their moral positions, would be tempted to commit perjury by admitting to a nonexistent offense (or to an offense they believe is nonexistent) to secure reinstatement. So regarded, this rule, intended to maintain the integrity of the bar, would encourage corruption in these latter petitioners for reinstatement and, again paradoxically, might permit reinstatement of those least fit to serve.” (In re Hiss (1975), 368 Mass. 447, 458-59, 333 N.E.2d 429, 437.)

We agree. The record shows that petitioner expressed contrition for his misconduct violative of the ethical standards of the legal profession. He was not convicted of the crimes charged, and repentance for offenses which he has consistently denied is not required for reinstatement.

The Review Board concluded that petitioner’s sworn statement that his disbarment “was not in any way related to his misappropriation of monies or his failure to account for any monies held or received by him on behalf of third parties” was “incredibly inaccurate.” Petitioner contends that the Commission rule (Attorney Registration and Disciplinary Commission Rule 11.19 (Ill. Rev. Stat. 1975, ch. 110A, following par. 770)) which elicited his statement was ambiguous and that he interpreted “third parties” to mean persons other than his clients, persons such as Dr. Pope or lien claimants. We agree- with petitioner that the applicability of the rule to the present facts is not without question. Petitioner’s interpretation of the question is not unreasonable and does not indicate an intent to deceive.

The Review Board concluded that the portion of the medical payments retained by petitioner belonged to his clients, to whom petitioner should make restitution. At his hearing petitioner testified that he had not attempted to locate and make restitution to his former clients. The Review Board found this insufficient and said it was absolutely essential for petitioner to show that he had made every conceivable effort at restitution.

Although whether restitution has been made is relevant in determining whether a disbarred attorney has been rehabilitated, it is not the controlling consideration. (See Annot., 70 A.L.R.2d 268, 291-93 (1960), and cases collected therein.) More than 10 years have elapsed since petitioner dealt with the clients to whom the Review Board would require him to make restitution, and he testified that he no longer has either the files or any information that would enable him to locate those people. Under these circumstances petitioner’s failure to show an effort to make restitution does not serve to preclude his being reinstated. We note that, as an alternative, petitioner has offered to contribute “an appropriate sum to some charity or to an attorney’s fund” but do not consider that so doing should be made a condition of reinstatement.

We are not in agreement with two conclusions reached by the Review Board. We agree that petitioner’s testimony that he did not know the last names of the solicitors from whom he bought cases may be interpreted to show a lack of candor. On the other hand, petitioner had little to gain by not divulging the solicitors’ full names if, in fact, he knew them. Furthermore, it appears credible that persons engaged in admittedly criminal activity (Ill. Rev. Stat. 1971, ch. 13, pars. 15, 16) would not disclose their complete identities.

We do not agree with the Review Board’s conclusion that petitioner had no understanding of the philosophy underlying the canons prohibiting solicitation. Petitioner testified before the Hearing Board that “it [solicitation] is conducting yourself in a way that a practitioner should not. It is holding yourself and dealing with people who are not lawyers, paying for business — these are things that should not be in a profession, in ours.” More lucid and eloquent explanations can be made, but we are of the opinion that petitioner’s statement shows some awareness of the rationale behind the proscription.

A final objection, not discussed in the report of the Review Board but argued by the Administrator before this court, is that petitioner has not demonstrated that his present knowledge of the law qualifies him to return to practice after a five-year absence. While a showing of present knowledge would be helpful in deciding whether an attorney is fit to practice law after a lengthy period of disbarment or suspension, it is not a prerequisite to reinstatement.

Petitioner has produced 39 affidavits from attorneys, stating in various ways that petitioner has learned his lesson and is now rehabilitated. It is undisputed that petitioner has not engaged in the practice of law since March 21, 1973, and from that date does not appear to have been guilty of any illegality or impropriety. Although the mere passage of time is not a sufficient ground for reinstatement, petitioner has produced enough evidence to prove himself rehabilitated and again fit to practice law in this State. The petition for reinstatement to the roll of attorneys is therefore granted.

Petitioner reinstated.


author: MR. JUSTICE MORAN

text:
    (No. 51140.
    RALPH WALDEN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Firestone Tire & Rubber Co., Appellee).

      Opinion filed June 1, 1979.

      Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Ralph Schroeder, of counsel), for appellant.
    Henry D. Noetzel & Associates, of Peoria (Henry DNoetzel, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Ralph Walden, claimant, sought a workmen’s compensation award for injuries he allegedly received as the result of a fall down steps outside a hotel in Cleveland, Ohio, on March 31, 1976. An Industrial Commission arbitrator denied claimant any compensation, finding that claimant had failed to prove that he sustained accidental injuries arising out of and in the course of his employment by Firestone Tire & Rubber Company (Firestone). The Commission affirmed the arbitrator’s determination on review. On certiorari to the circuit court of McLean County, the Commission’s decision was confirmed, the circuit court holding that the findings and decision of the Commission were not against the manifest weight of the evidence. Claimant has appealed to this court pursuant to Rule 302(a). 58 Ill. 2d R. 302(a).

Claimant was a machine operator with Firestone in Bloomington and was president of the local union. One of his duties in connection with the latter position was to represent the union in grievance disputes between local union members and Firestone. The company was usually represented in grievance matters by John Call, industrial relations and personnel manager. Claimant testified that sometimes he also discussed local grievances, by telephone, with Jake Miller, Firestone’s coordinator, who was located in Akron, Ohio.

Claimant, as his local union’s designated representative to the international union’s master contract negotiations, attended such negotiating sessions in Cleveland, Ohio, from February of 1976 through the end of August. On March 31, 1976, the day of claimant’s injury, both John Call and Jake Miller were also in Cleveland. The parties stipulated that, at the time in question, an employer-employee relationship existed between Firestone and claimant, although claimant performed no duties as an employee and his wages and expenses were paid by the local union during this period.

Regarding his injury, claimant testified that, as he walked down steps outside his hotel, he missed a step and twisted his ankle. He claimed that he was on his way to his automobile in the parking garage to gather grievance material to show to Miller. After he fell, claimant continued on to his car, got the grievance material, and thereafter discussed the material with Miller. The next day, claimant went to a Cleveland physician, who put a cast on his leg.

Claimant has devoted a goodly portion of his argument to the issue of whether an injury which occurs in the course of union activity is compensable as “arising out of and in the course of the employment” (Ill. Rev. Stat. 1975, ch. 48, par. 138.2). He does not contend that his participation in the master contract negotiations provides the basis for compensation. Rather, he contends that he qualifies for compensation based on his assertion that his injury occurred on the way to his automobile to get his local union grievance material to discuss with Jake Miller.

The claimant in a workmen’s compensation proceeding bears the burden of proving the necessary elements which permit an award. (Brown v. Industrial Com. (1974), 57 Ill. 2d 313, 316.) We view the decision of the Commission, affirming the arbitrator, as a determination that claimant failed to sustain his burden of proving this assertion with sufficient credible evidence. We note that claimant’s testimony, regarding his being en route to get his local grievance material when his injury occurred, was uncorroborated. Jake Miller did not appear as a witness. John Call testified that he did not remember claimant ever telling him where or when the accident happened, or where he was going or what he was doing at the time. Furthermore, claimant admits that no time was set aside during the period of the Cleveland negotiations for discussion of local grievances.

It is not this court’s role to independently weigh the evidence and decide factual issues; it is the Commission’s function to make all factual determinations in the first instance. The court may upset a factual determination of the Commission only when it is contrary to the manifest weight of the evidence. (Warren v. Industrial Com. (1975), 61 Ill. 2d 373, 376.) Having applied this standard in reviewing the entire record, we do not believe the Commission’s determination should be disturbed.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.


author: MR. JUSTICE WARD

text:
    (No. 51121.
    FIRESTONE TIRE AND RUBBER COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charles Gordon, Appellee).

      Opinion filed June 1, 1979.

      Henry D. Noetzel & Associates, of Peoria (Henry D. Noetzel, of counsel), for appellant.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Ralph Schroeder, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The claimant, Charles Gordon, sustained accidental injuries on March 23, 1976, arising out of and in the course of his employment with the respondent, Firestone Tire and Rubber Company (Firestone). Both parties sought review after an Industrial Commission arbitrator awarded compensation for 18 weeks of temporary total disability and a 15% permanent and complete loss of use of claimant’s left arm. The Commission affirmed the arbitrator’s allowance of temporary total disability, and increased the award for permanent and complete loss of use of the left arm to 45%. The circuit court of McLean County confirmed the Commission’s decision, and Firestone appealed directly to this court (58 Ill. 2d R. 302(a)).

The respondent contends that the claimant is not entitled to temporary total compensation because he was capable of performing work of some character at the respondent’s plant. It is contended too that the increase of the award from 15% to 45% is against the manifest weight of the evidence, since no further expert medical testimony was presented before the Commission.

The claimant is a tire builder at a Firestone plant. On March 23, 1976, while attempting to remove the ply from a tire liner, he “gave it a jerk” and struck his left elbow on a shelf. Two days later, still suffering from a painful and swollen elbow, he visited the plant physician, who advised him to continue his regular work and report back in two weeks. During that period the claimant worked as a tire builder. He did visit the company nurse, who fashioned a pad to protect his elbow against bumping. On April 12, 1976, the claimant again was examined by the company doctor, who advised him to continue at work. The claimant testified that his elbow’s condition had become aggravated and that he thought “something should be done.” The doctor’s response was that he would perform surgery on his elbow at the end of the week.

On April 16, 1976, the olecranon bursa on the claimant’s left elbow was removed under a general anesthetic. The arm was not casted. The following day the claimant was discharged from the hospital, and he spent the weekend in bed, he testified. On Monday, he was driven to the doctor’s office, and after changing the dressing on his elbow the doctor told the claimant that Firestone had informed him that the claimant was expected to return to work the following day at 7 a.m. Fie was to be given an assignment which would require the use of only one hand.

When the claimant arrived at the plant the next morning, he felt “lightheaded and rubber kneed” and his arm pained him. His stitches had not been removed and a drain had been placed at the surgical site. He was sent to a tool cage to make up plant component tags, using one arm. He sat there for a short time and then walked to the nurse’s office, where he was given medication for pain. He returned to the tool cage but did no work. He felt ill and returned to the nurse, who arranged for transportation and sent him home.

The following day the employees of Firestone went on a strike, which did not end until August 30, 1976. The claimant, who is right-handed, testified that during the month of July he spent two days painting a house, while holding onto a ladder with his left hand. His left arm became swollen and painful and he had to apply hot packs to it. Attempts at weeding in his own yard during that period also resulted in considerable swelling of his arm.

On August 30, 1976, the claimant reported to the plant nurse and was again given the tagging assignment. His arm was still swollen and painful. The company doctor examined the claimant at the plant that afternoon, advised him he was to resume tire building in the morning, and instructed the nurse to watch the elbow for increased swelling. The claimant returned to his former duties. The nurse examined his elbow twice daily for some time and instructed the claimant to soak it periodically while at work. The claimant testified at the hearings before the arbitrator and the Commission that there still was pain, swelling and drainage at the surgical site.

The claimant’s examining physician, Dr. Gordon Shultz, an orthopedic surgeon, testified at the hearing before the arbitrator. He was of the opinion that the claimant’s arm should have been casted at the time of the surgical procedure to make it immobile so as to promote healing. This was an accepted medical procedure, he said, although many times similar operations are performed without subsequent casting. He stated that the claimant had bursitis of the left elbow and a “rather large” fractured spur at the surgical site which would probably necessitate further surgery. He believed the spur to be a preexisting condition, the fracture of which could have been caused by the claimant’s accident, and he testified that the accident might have or could have aggravated a preexisting condition. He said that the swelling and drainage of the elbow constituted a chronic process which might “go on for a long time, maybe forever.” Dr. Shultz conceded on cross-examination that it would be possible for a man under such circumstances to return to a job requiring the use of only one arm after 10 days, but it is not clear from the context of his statement whether he was referring to a person whose arm had been casted or one whose arm had not been casted.

The respondent’s contention is that the award of 18 weeks temporary total disability was in error because a job had been provided for the claimant which was capable of being performed with one arm, although the machine involved is ordinarily operated with two arms. Firestone points out also that the claimant was able to paint a house for two days in July of 1976.

The only authority relied upon by the respondent is Cebulski v. Industrial Com. (1971), 48 Ill. 2d 289, in which this court affirmed a judgment of the circuit court confirming a decision of the Industrial Commission that the petitioner had failed to prove he sustained a permanent disability. There was no showing that the judgment of the circuit court was against the manifest weight of the evidence. Unlike the situation in Cebulski, an award for temporary total disability was here approved by the Industrial Commission and circuit court. The approval was not contrary to the manifest weight of the evidence. This is pertinent because “[t]he determination of disputed facts and the drawing of reasonable inferences from the evidence in workmen’s compensation cases are the province of the Industrial Commision, and its findings regarding the nature and extent of a disability will not be set aside unless they are contrary to the manifest weight of the evidence.” Hiram Walker & Sons, Inc. v. Industrial Com. (1978), 71 Ill. 2d 476, 479.

We consider that the record discloses ample evidence of swelling, drainage and pain to support the temporary total disability portion of the claimant’s award. The testimony that the job of tagging could be performed with one arm was not sufficient to overcome the Commission’s finding that the claimant’s condition constituted temporary total disability for the weeks in question. Nor does the evidence that the claimant for two days was painting a house serve to bar the award for temporary total disability. In J. M. Jones Co. v. Industrial Com. (1978), 71 Ill. 2d 368, 373, we referred to our statement in E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 361-62, governing work during a period of total disability:

“Evidence that the employee has been or is able to earn occasional wages or to perform certain useful services neither precludes a finding of total disability nor requires a finding of partial disability. [Citations.] For the purposes of section 8(f) [section 19(b)], a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists.”

We do not find merit in the respondent’s contention that the arbitrator’s lesser award of 15% permanent loss of use should be reinstated because there was no further medical testimony at the hearing on review before the Commission and because the claimant offered no new claim of disability beyond that to which he had testified at the arbitator’s hearing. Questions of fact are within the province of the Industrial Commission, “even where the Commission’s findings differ from those of the arbitrator and no further evidence has been taken by the Commission.” (Scuderi v. Industrial Com. (1978), 73 Ill. 2d 277, 281.) The Commission’s decision was not contrary to the manifest weight of the evidence. For the reasons given, the judgment of the circuit court of McLean County is affirmed.

Judgment affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (Nos. 50784, 50834, 50857.
    (No. 51156.

      In re IRISH D. GREENE, a Minor, Appellee (The People of the State of Illinois, Appellant).—In re EDWARD EICHER, a Minor, Appellee (The People of the State of Illinois, Appellant).—In re MARVIN B. FRAZIER, a Minor, Appellant (The People of the State of Illinois, Appellee).—In re GORDON DYESS, a Minor, Appellant (The People of the State of Illinois, Appellee).—In re DARNELL MURFF, a Minor, Appellant (The People of the State of Illinois, Appellee).—In re MICHAEL STRICKLAND, a Minor, Appellant (The People of the State of Illinois, Appellee).

      Opinion filed May 24, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Linda Dale Woloshin, James V. Marcan ti, Rimas F. Cernius, and Marcia B. Orr, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (John Thomas Moran, Aaron L. Meyers, and James B. Haddad, of counsel), for appellee.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Linda Dale Woloshin, James V. Marcan ti, Rimas F. Cernius, and Marcia B. Orr, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (John Thomas Moran, Aaron L. Meyers, and James B. Haddad, of counsel), for appellee.
    James J. Doherty, Public Defender, of Chicago (Dennis E. Urban, Frances Sowa, and Ronald P. Alwin, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr and Rimas F. Cernius, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Dennis E. Urban and Aaron L. Meyers, of counsel), for appellants.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr and Rimas F. Cernius, Assistant State’s Attorneys, of counsel), for the People.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This cause is a consolidated appeal from four appellate court decisions reviewing the findings of delinquency entered by the circuit court of Cook County, juvenile division, against six respondents. The issue concerns the nature and effect of the age factor in the definition of delinquent minors contained in the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 2). (Although the causes arose in 1974, 1975, and 1976, the 1977 statutes will generally be cited for unamended provisions.)

Pursuant to petitions for adjudication of wardship, filed by the State and alleging the respondents had committed specified criminal offenses prior to their 17th birthdays, all six respondents were found delinquent. The findings of delinquency were entered following adjudicatory hearings after which the court determined each respondent had violated the specified criminal law beyond a reasonable doubt: Irish Greene, voluntary manslaughter (Ill. Rev. Stat. 1973, ch. 37, par. 702 — 2; Ill. Rev. Stat. 1973, ch. 38, par. 9 — 2(a)(1)); Edward Eicher and Gordon Dyess, aggravated battery (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 2; Ill. Rev. Stat. 1975, ch. 38, par. 12 — 4(a)); Marvin Frazier, assault, aggravated assault, and unlawful use of a weapon (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 2; Ill. Rev. Stat. 1975, ch. 38, pars. 12-l(a), 12-2(a)(l), 24 — 1(a)(2)); Michael Strickland, rape and robbery (Ill. Rev. Stat. 1975, ch. 37, par. 702-2; Ill. Rev. Stat. 1975, ch. 38, pars. 11 — 1, 18 — 1); Darnell Murff, armed robbery and unlawful restraint (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 2; Ill. Rev. Stat. 1975, ch. 38, pars. 18 — 2, 10 — 3). Greene and Dyess were placed on one year’s probation. Eicher, Murff, Strickland and Frazier were committed to the Dlinois Department of Corrections, juvenile division.

On appeal, all six respondents challenged the adjudications of delinquency on the ground that the State had failed to prove beyond a reasonable doubt that respondents had committed the offenses on which the adjudications of delinquency were based, prior to their 17th birthdays. The Appellate Court, First District, Third Division, reversed the judgment against Greene (In re Greene (1978), 59 Ill. App. 3d 286), and the Appellate Court, First District, Fifth Division, reversed the judgment against Eicher (In re Eicher (1978), 59 Ill. App. 3d 1021) on the ground that age is an element of delinquency which the State must prove beyond a reasonable doubt. The Appellate Court, First District, First Division, remanded Frazier’s cause (In re Frazier (1978), 60 Ill. App. 3d 119) for a determination of his age at the time he committed the offense on which the finding of delinquency was predicated on the ground that age, while not an element of delinquency, is an essential statutory fact without proof of which the trial court would have no statutory power to proceed under the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 1 et seq.). Dyess’, Murff’s, and Strickland’s appeals had been consolidated in the Appellate Court, First District, Fourth Division, which affirmed the judgments against them on the ground that the age limitation merely confers authority on the trial court to proceed and that the issue of age is waived unless specifically raised (In re Dyess (1978), 62 Ill. App. 3d 571). This court allowed the State’s petitions for leave to appeal from the appellate court judgments entered in favor of Eicher and Greene, allowed the petitions for leave to appeal filed by Frazier, Dyess, Strickland, and Murff, and consolidated the appeals.

We hold that age is not an element which must be proved beyond a reasonable doubt in order to support an adjudication of delinquency. Delinquency is not a crime codified under our criminal laws. Rather, it is the commission of an otherwise unlawful act by one under 17 that triggers the application of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 1 et seq.). Age therefore is merely the factor which authorizes the application of the juvenile system. Once the State has properly alleged in the petition for adjudication of wardship that the respondent was under 17 years of age at the time of the commission of the offense which forms the basis for the petition (Ill. Rev. Stat. 1977, ch. 37, pars. 702 — 1, 702 — 2, 704 — 1), the authority of the court to proceed under the Juvenile Court Act has been asserted. Unless the respondent specifically challenges the authority of the court to proceed against him as a juvenile, the respondent is deemed to have consented to the juvenile proceedings and has waived any objections to the court’s authority to apply juvenile procedures and to impose juvenile sanctions upon him. The burden then lies on the State to prove the respondent’s guilt of the underlying offense beyond a reasonable doubt. Our conclusion is based primarily on an analysis of the Act and its purpose.

The Act establishes that its purpose is to care for and guide minors (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 2(1); In re Armour (1974), 59 Ill. 2d 102, 104), and it expressly mandates that it is to be construed liberally to carry out that protective function (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 2(4)). Thus the terms in the Act should be read to favor the inclusion, rather than the exclusion, of minors.

The specification of age in the delinquency provision of the Juvenile Court Act sets forth a class of minors whose cases are to be governed by the provisions of the Act. The petition for adjudication of wardship must allege, and the trial court at the adjudicatory hearing must determine, that the respondent is a delinquent (Ill. Rev. Stat. 1977, ch. 37, pars. 702 — 1, 704 — 1, 704 — 6). Section 2 — 2 of the Act defines a delinquent as “any minor who prior to his 17th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance” (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 2). That definition sets forth “jurisdictional facts” necessary for the institution of delinquency proceedings under the Act (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 1), and the council commentary to an amendment to section 2 — 2 provides that “[t]he age differentiation between boys and girls with respect to the jurisdiction of the juvenile court in delinquency proceedings is abolished, and the jurisdictional limit for both sexes is established at under 17 years of age” (emphasis added) (Ill. Ann. Stat., ch. 37, par. 702 — 2, Council Commentary, at 59 (SmithHurd Supp. 1978)).

Thus the definition refers to age not as an element of delinquency but as a quasi-jurisdictional factor, the presence of which confers authority on the court to proceed under the Juvenile Court Act. It delineates the group encompassed by the category of delinquency as do other age designations for other classifications under the Act (Ill. Rev. Stat. 1977, ch. 37, pars. 701 — 13 (minors), 702 — 3 (minors otherwise in need of supervision), 702 — 4 (neglected minors), 702 — 5 (dependent minors)).

It is manifest, however, that the age factor in the definition of delinquency is not, technically, a jurisdictional requirement since the juvenile court is simply a division of the circuit court (Ill. Rev. Stat. 1977, ch. 37, par. 701-8; People v. Jiles (1969), 43 Ill. 2d 145, 147) which, under article VI, section 9, of the Illinois Constitution of 1970, has jurisdiction of all justiciable matters except in two specified instances in which the supreme court has original and exclusive jurisdiction. Thus establishment of age, unlike the subject matter jurisdiction of a court (see People v. Reed (1965), 33 Ill. 2d 535, 538-39; People v. Link (1937), 365 Ill. 266, 290; People v. Gregory (1974), 59 Ill. 2d Ill, 112), is a matter which can be waived. The State’s failure to establish age is analogous to prosecuting a defendant in the wrong county or to proceeding before a court that is improperly organized, objections to which can be waived (Ill. Rev. Stat. 1977, ch. 38, par. 1 — 6(a) (place of trial); People v. Ondrey (1976), 65 Ill. 2d 360, 363-64 (place of trial); People v. Dunn (1972), 52 Ill. 2d 400, 402 (place of trial); Cleary v. Chicago Title & Trust Co. (1954), 4 Ill. 2d 57, 59 (organization); People v. Link (1937), 365 Ill. 266, 290 (organization)).

The situation of a respondent who remains silent about his age while proceeding to defend himself against an adjudication of delinquency under the Juvenile Court Act finds further analogy in cases which hold that a juvenile who wilfully misrepresents his age to an adult criminal court waives the statutory procedures which inure to juveniles accused of criminal offenses (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 7; People v. Henderson (1971), 2 Ill. App. 3d 285, 288; People v. Hall (1977), 55 Ill. App. 3d 341, 343; see People v. Smith (1974), 59 Ill. 2d 236, 240-41). In both instances the juvenile submits to the authority of the court before which he is tried. In the former case, however, the respondent is accorded the benefits which the latter has abandoned through his misrepresentations. Cf. People v. Poole (1918), 284 Ill. 39, 41, and Sullivan v. People (1895), 156 Ill. 94, 97, holding under a statute then in effect that despite the statutory mandate that the jury find whether a defendant is between the ages of 10 and 21, it is presumed that the defendant is over 21 unless evidence is introduced to the contrary.

Section 4 — 6 of the Act provides that the standard of proof and rules of evidence in the nature of criminal proceedings are applicable to the determination of delinquency (Ill. Rev. Stat. 1977, ch. 37, par. 704 — 6). However, the Act’s purpose and logic indicate that this requirement attaches to the elements of the offense which form the basis for the delinquency proceeding, since it is not the age of the offender which is analogous to a crime but his conduct (see In re Urbasek (1967), 38 Ill. 2d 535, 540, holding that the acts of delinquency must be proved beyond a reasonable doubt). Furthermore, if age were an element which the State had to prove beyond a reasonable doubt, the potential difficulty in obtaining the testimony of a parent, a birth certificate, or an admission by the respondent, which would be sufficient to prove age, could defeat the protective purposes of the Act by rendering it difficult for the State to invoke its protections for the benefit of minor respondents.

Since age is not an element which the State must prove, the general denials to the petitions for adjudication of wardship entered by the respondents here did not place in issue respondents’ ages and the court’s authority to proceed. The denials merely required the State to prove the elements of its case beyond a reasonable doubt (Ill. Rev. Stat. 1977, ch. 37, pars. 704 — 8, 704 — 6). Contrary to the respondents’ contentions, to require the respondent to specifically challenge the court’s authority to treat him as a juvenile once the State has invoked juvenile proceedings does not transform age into an affirmative defense without express authorization by the General Assembly (see People v. Smith (1978), 71 Ill. 2d 95, 106). The sole contention a respondent is called upon to raise is that he is being tried in the wrong courtroom. No defense to responsibility for any offense is at issue.

Our analysis of the Act and our disposition of these cases serve the protective purpose and policy of the Juvenile Court Act to care for and guide minors (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 2(1)). They also serve the interest of minors in avoiding the stigma of a criminal prosecution and in receiving the benefits the Act intends to direct toward juvenile as opposed to adult offenders (see In re Beasley (1977), 66 Ill. 2d 385, 390 (juvenile proceedings are not criminal in nature); In re Armour (1974), 59 Ill. 2d 102, 104 (the purpose of the juvenile court statute is not to punish, but to correct); People v. Gooden (1977), 56 Ill. App. 3d 408, 412 (noting that waiver of juvenile procedure exposes the juvenile to severe punishment, including detention beyond his 21st birthday, to publicity, to a public arrest record, to prejudice in future employment, and, if he is convicted in a criminal prosecution, to loss of civil rights, to use of his conviction against him in subsequent proceedings, and to disqualification from public employment). Should a juvenile respondent feel he will derive more favorable treatment from adult proceedings, the Act itself provides a mechanism for transfer of causes to the adult criminal system upon motion of the respondent, with consent of counsel (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 7(5)). Thus a respondent who was under 17 at the time he committed the underlying offense receives no premium for remaining silent during the adjudicatory hearing. The risk of incorrectly trying an adult as a juvenile is mitigated by the State’s interest in properly trying an adult in the adult, versus the juvenile, system; that interest is supported by the nonpunitive nature and purposes of juvenile proceedings (In re Beasley (1977), 66 Ill. 2d 385, 390; In re Armour (1974), 59 Ill. 2d 102, 104).

The respondents argue that the statutory language is clear and thus precludes any judicial construction of the Juvenile Court Act to determine the meaning of the age factor in the delinquency provisions. However, the varying analyses and conclusions in the appellate court opinions reveal the apparent ambiguity which requires this court to examine the statutory language and purposes, as well as the consequences which would derive from alternate constructions of the age factor, to determine the legislative intent in including the age provision (see In re Armour (1974), 59 Ill. 2d 102, 104).

The Ohio case on which respondents place great reliance is inapposite since the Ohio juvenile court, unlike circuit courts in Illinois hearing juvenile cases, was a statutory court of limited jurisdiction, and the State had to show age in order to establish technical jurisdiction of the court over the alleged delinquent; the court in State v. Mendenhall (1969), 21 Ohio App. 2d 135, 255 N.E.2d 307, therefore set aside the judgment and sentence and dismissed the complaint since the State had not established age. The same basis for distinction applies to the line of Texas cases the respondents cite (see, e.g., Miguel v. State (Tex. Civ. App. 1973), 500 S.W.2d 680, 681, and In re J. T. (Tex. Civ. App. 1975), 526 S.W.2d 646, reversing and remanding for evidence of age).

Respondents Eicher and Greene further argue that this court cannot and should not consider the State’s contention that they waived any objection to the authority of the court to apply the Juvenile Court Act since that argument was not raised in the petition for leave to appeal filed in their cases and since the State did not file a petition for leave to appeal from the judgment of the appellate court in Frazier’s case. Our rules provide, however, that a reviewing court may give any judgment which ought to have been given or which the case may require (58 Ill. 2d R. 366(5)). All six respondents raised the same issue on appeal to the appellate court, and the arguments raised by the State pose only possible resolutions of those same issues. Our rules further provide that any appellee may seek and obtain any relief warranted by the record on appeal without filing a separate petition for leave to appeal, notice of cross-appeal or separate appeal (58 Ill. 2d R. 318(a)).

In sum, while it is advisable for the State to establish a respondent’s age at the adjudicatory stage to avoid any possibility of an improper application of juvenile procedures, age is not an element of delinquency but is a factor which triggers the application of the Juvenile Court Act to young offenders. If the respondent does not challenge the authority of the court to proceed under the provisions of the Act, the respondent has consented to the court’s authority and has waived any objection to his treatment as a juvenile. Since none of the respondents challenged the authority of the circuit court, juvenile division, to proceed, we hold that the petitions for adjudication of wardship and findings of delinquency should have been affirmed.

The judgments rendered by the appellate court in favor of respondents Eicher and Greene, in cause Nos. 50784 and 50834, are reversed, and the adjudications of delinquency entered by the circuit court are affirmed. The judgment rendered by the appellate court in cause No. 50857 remanding the cause to determine Frazier’s age is reversed, and the finding of delinquency entered by the circuit court is affirmed. The judgment of the appellate court in cause No. 51156 affirming the findings of delinquency against Dyess, Murff and Strickland is affirmed.

50784 — Appellate court reversed; circuit court affirmed.

50834 Appellate court reversed; circuit court affirmed.

50857 Appellate court reversed; circuit court affirmed.

51156 Judgment affirmed.


text:
    (No. 51032.
    THE COUNTY OF COOK, Appellee, v. FELIPE AYALA et al., Appellants.

      Opinion filed May 24, 1979.

      William P. Tuggle (Joan M. Pucilio, of counsel), and Winston & Strawn, of Chicago (Calvin Sawyier, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Stuart D.

      Gordon, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This case arises out of a dispute between the board of commissioners of Cook County (County Board) and the Health and Hospitals Governing Commission of Cook County (Hospital Commission), regarding the power of the County Board to impose a legally binding limit upon the total annual expenditures of the Hospital Commission. As a result of that dispute, the County of Cook brought this action in the circuit court of Cook County, seeking declaratory and injunctive relief against the Hospital Commission and its members. (For convenience, we will refer to all defendants as the Hospital Commission.) The circuit court granted such relief and dismissed defendants’ counterclaim for declaratory judgment on a separate issue. We granted the defendants’ motion to transfer their appeal directly here pursuant to our Rule 302(b) (58 Ill. 2d R. 302(b)), and we now affirm.

The Hospital Commission, a creature of statute, is a relatively recent innovation in Illinois local government law. It traces its ancestry to 1969, when the legislature enacted the County Hospitals Governing Commission Act (Ill. Rev. Stat. 1969, ch. 34, par. 5011 et seq. (the Act)). As originally adopted, section 13 of the Act provided as foUows:

“On or before the 1st day of December of each year the Commission shall submit to the Board of Commissioners of such county a budget for the expenses of any such hospital, hospital facility and the hospital, medical, nursing, health and allied medical programs related thereto for which it requests the county to make an appropriation. The Board of Commissioners shall appropriate a sufficient sum of money as the Board deems necessary to meet the expenses and to carry out the provisions of this Act.” (Ill. Rev. Stat. 1969, ch. 34, par. 5023.)

Section 14 of the Act further provided that “[t]he [Hospital] Commission shall provide the Board of Commissioners of such county with such information in medical, personnel and budgetary matters as the Board may request.” (Ill. Rev. Stat. 1969, ch. 34, par. 5024.) Thus, under the Act, as originally adopted, the Hospital Commission would submit a budget to the County Board, including both projected revenues as well as proposed expenditures, and the County Board would “appropriate a sufficient sum of money as the Board deems necessary to meet the expenses and to carry out the provisions of this Act.” Ill. Rev. Stat. 1969, ch. 34, par. 5023.

It is undisputed that, under this scheme, the Hospital Commission could not lawfully expend in excess of the total amount approved for expenditure by the County Board, regardless of the source of the funds to be expended. The Act was amended, however, by Public Acts 76 — 2015 and 78 — 925, and the Hospital Commission contends that the effect of those amendments was to take away the County Board’s power to establish a legally binding limit upon the total annual expenditures of the Hospital Commission. We disagree.

Several provisions of the Act were affected by the 1970 and 1973 amendments, but the most significant section for purposes of this case is, again, section 13 (Ill. Rev. Stat. 1973, ch. 34, par. 5023). As amended, the budgetary procedure established by section 13 calls for the Hospital Commission to submit to the County Board “a consolidated budget covering all anticipated income, expenses, and capital outlays.” (Ill. Rev. Stat. 1973, ch. 34, par. 5023.) The Hospital Commission simultaneously requests an appropriation from the County Board, of an amount equal to “the difference between the anticipated expenses and capital outlays in the consolidated budget and the anticipated income submitted in the consolidated budget.” To “offset such net amount,” the County Board then appropriates “a sufficient sum of money as the Board deems necessary for the Commission to meet the expenses and to carry out the provisions of this Act.” Ill. Rev. Stat. 1973, ch. 34, par. 5023.

Both sides agree that, under this new procedure, the County Board no longer may directly veto or modify the line-item or program expenditures of the Hospital Commission, it being the clear intent of the legislature to vest primary responsibility for day-to-day management and individual budgetary questions in the Hospital Commission. It was expressly conceded, however, by counsel for the Hospital Commission, during oral argument, that the County Board retains the power to decide whether to appropriate the full amount requested by the Hospital Commission, and it was further conceded that the County Board may base its decision upon its belief that expenditures projected by the Hospital Commission are too high. Nonetheless, the Hospital Commission contends that even if the County Board refuses to appropriate the full amount requested, the Hospital Commission remains free to expend the full amount projected in the consolidated budget which it submitted to the County Board, provided it can find the money elsewhere, e.g., from the receipt of revenues in excess of those projected in the consolidated budget. While we agree that the statutory scheme created by the Act is, indeed, a “hybrid,” we think that the construction of the Act urged upon us by the Hospital Commission would create a Frankenstein.

It just does not make sense to assume that the legislature intended the Hospital Commission to be able to subvert the fiscal authority retained by the County Board under the Act, by simply overstating projected expenditures or by understating projected revenues. We have examined all the various statutory provisions from which the Hospital Commission has attempted to glean such an intent, but when read in pari materia with section 13 (cf., e.g., Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 35 Ill. 2d 205), we find them totally lacking in support for the Hospital Commission’s position. (See, e.g., Ill. Rev. Stat. 1975, ch. 34, par. 5020 (power “to administer and expend all funds collected”).) Counsel for the Hospital Commission has characterized as “political rhetoric” and “nonsense” the notion that the Hospital Commission is “overspending” because, counsel contends, the Commission has never overspent the amount stated in its consolidated budget. We would not be so cavalier, however, about legislative intent regarding control of the public purse. There are, inevitably, tensions inherent in the statutory division of authority among different units of government. When those tensions give rise to disputes which end up in court, it is the duty of the courts to attempt to give full effect to the overall legislative scheme, and to interpret the law consistent not only with the apparent meaning of the language of the particular provisions at issue, but also with the overall objects of the legislative scheme. (See People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271, 273.) Here, it is apparent that the legislature intended to keep the County Board out of the day-to-day affairs of the Hospital Commission, but it is also apparent that the legislature did not intend to vest the Hospital Commission with sole authority as to its overall expenditures. While there is a danger that the County Board will attempt to use its limited fiscal powers in such a way as to influence the exercise of the powers reserved to the Hospital Commission, that is the type of tension inherent in any division of authority.

The provision of social services in a democracy is dependent upon public faith in the cost-effectiveness of those services. Fiscal controls are, therefore, in the final analysis, the allies, not the adversaries, of the public weal. We find that the opinion and order below correctly and lucidly declared the legal relationship of the parties regarding this issue, and we accordingly affirm that part of its judgment.

The circuit court also correctly dismissed the Hospital Commission’s counterclaim for declaratory judgment regarding the taxing power of the county. The Hospital Commission sought a declaratory judgment that the County Board’s authority to appropriate funds for the Hospital Commission was not limited to sums raised by the tax authorized by section 13 of the Act (Ill. Rev. Stat. 1977, ch. 34, par. 5023 (“tax on the taxable property in the county to be extended at a rate not to exceed .25% of value”)). The County Board, however, does not seek to exercise the authority which the Hospital Commission seeks to establish, and we agree with the court below that declaratory judgment therefore would be inappropriate here. It is undisputed that the Hospital Commission may not compel the exercise of the authority which it seeks to establish for the County Board. Accordingly, a decision on this issue would merely be advisory, “and Illinois judges have no authority to issue advisory opinions.” Howlett v. Scott (1977), 69 Ill. 2d 135, 143; 28 East Jackson Enterprises, Inc. v. Rosewell (1976), 65 Ill. 2d 420, 426; Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375; Exchange National Bank of Chicago v. County of Cook (1955), 6 Ill. 2d 419, 421-22.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.