author: MR. JUSTICE UNDERWOOD

text:
    (No. 53256.
    JAN SIEGEL, Appellee, v. ARNOLD SIEGEL, Appellant.

      Opinion filed January 20, 1981.

    Rehearing denied March 27, 1981.

      SIMON, J., took no part.
    Sherwin & Sherwin, of Chicago (Theodore R. Sherwin, of counsel), for appellant.
    Schiller & Schiller, Ltd., of Chicago (Donald C. Schiller and John F. Martoccio, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Arnold Siegel (father), on January 10, 1978, filed in the circuit court of Cook County (circuit court), his petition for a rule upon Jan Siegel (mother), to show cause why she should not be held in contempt. The mother’s allegedly contemptuous conduct consisted of applying to the superior court of California, County of Los Angeles (California court), for modification of the child-visitation provisions contained in the circuit court’s 1972 decree dissolving the father and mother’s marriage. In orders of June 12 and June 28, the circuit court found the mother in contempt and provided that all child-support payments by the father cease retroactively to January 10, 1978. The mother appealed, and the appellate court (80 Ill. App. 3d 583) affirmed the circuit court’s finding that it had jurisdiction, but reversed the termination of child support and remanded the cause for a hearing on the issue of contempt. We granted the father’s petition for leave to appeal.

The 1972 marriage dissolution decree awarded custody of the two children, then aged approximately 5 years and 314 years, to the mother, with detailed visitation privileges for the father. Paragraph (h) of that judgment provided “[tjhat this Court reserves jurisdiction of the subject matter of this case and of the parties hereto for the purpose of enforcing the terms of this Judgment and the terms and provisions of the Agreement incorporated herein.”

In June 1974 the mother’s application to the circuit court for permission to move herself and the children to California was granted, conditioned upon the posting of a $5,000 bond guaranteeing compliance with the terms of the order, one of which was:

“That the minor children shall remain solely under the jurisdiction of the Circuit Court of Cook County, Illinois, and both the Plaintiff and the Defendant are enjoined from petitioning any other Court for relief concerning the welfare of the minor children, or the modification of this ORDER.”

In April 1976 the circuit court released the mother’s bond. A dispute about 1977 summer visitation resulted in a June 29, 1977, circuit court order detailing visitation procedures.

On December 22, 1977, the mother filed in the California court her petition seeking to domesticate and modify the visitation provisions of the circuit court’s orders. Among the supporting papers filed by the mother was a report of the children’s psychiatrist, Dr. Maurice Zeitlin, describing what he saw as the children’s troubled relationship with their father and suicidal tendencies of the older child. The California court, on the filing date, entered an order restraining the father from harassing the mother and children or removing the children from the State of California and terminating his visitation privileges pending the court’s further order. On December 29, when the father was in California to see the children, he was personally served with notice of those proceedings and directed to appear on January 11 to show cause why orders requested by the mother to limit his visitation to that recommended by the psychiatrist should not be made. The father did not appear at the hearing, and the California court ordered the judgment of the circuit court adopted as its own and modified it as requested by the mother.

On January 10, following his return to Illinois, the father applied to the circuit court for a rule requiring the mother to show cause why she should not be held in contempt for violating the June 28, 1974, and June 29, 1977, orders. He also sought a mandatory injunction requiring her to cause the California court order to be vacated and that case dismissed. On January 10 the circuit court ordered that the mother be restrained from proceeding in the California court. On February 10 the mother’s attorney entered a special appearance in the circuit court, contesting the court’s jurisdiction over her person and the subject matter. On that date counsel for the father filed a petition for a rule requiring the mother to show cause why she should not be held in contempt for also violating the circuit court’s January 10 order. On May 2 the circuit court “denied” the mother’s special appearance and her counsel “stood on the special appearance.” On June 12 the circuit court entered an order terminating child-support payments, retroactively to January 10, “until further order of this court” and set June 27 as the return date on the contempt rule. On June 28 that court entered its order finding the mother in contempt and discontinuing all child-support payments “until further order of this court.” This appeal followed.

The father initially argues that the orders finding the mother guilty of contempt and terminating support payments as of January 10 are not, in the absence of the imposition of a sentence for contempt, final and appeal-able. We believe, however, that sanctions rendering contempt judgments appealable are not limited to fines and imprisonment. It is apparent here that the action of the circuit judge was intended, at least in part, as punishment for what he viewed as the mother’s contemptuous conduct in violating that court’s prior orders. In these circumstances we believe the judgment appealable. Bulandr v. Bulandr (1959), 23 Ill. App. 2d 299; Szczawinski v. Szczawinski (1962), 37 Ill. App. 2d 350.

The statutory provisions relevant to our consideration of this case are contained in the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) (the Act), which became effective on October 1, 1977. Section 801 (Ill. Rev. Stat. 1977, ch. 40, par. 801) of the Act provides:

“Sec. 801. Application.
(a) This Act applies to all proceedings commenced on or after its effective date.
(b) This Act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Evidence adduced after the effective date of this Act shall be in compliance with this Act.
(c) This Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.
(d) In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial, and any subsequent trial or appeal.”

It is apparent from these provisions, particularly subsections (a) and (c), that the Act is applicable to these proceedings, which were commenced subsequent to its adoption.

Prior to the enactment of the Act, it had been a basic principle of Illinois child-custody law that custody decrees were modifiable, as the best interests of the children demanded. (Jarrett v. Jarrett (1979), 78 Ill. 2d 337, cert., denied (1980), 449 U.S. 927, 66 L. Ed. 2d 155, 101 S. Ct. 329; Nye v. Nye (1952), 411 Ill. 408.) Section 610 of the Act indicates that it, too, contemplates modifiable custody decrees, although it makes modification more difficult. (See In re Custody of Harne (1979), 77 Ill. 2d 414.) It was the general rule in Illinois, prior to the effective date of the Act, that the court which entered the original child-custody decree retained “continuing jurisdiction” of the subject matter and the parties for modification purposes. (Sommer v. Borovic (1977), 69 Ill. 2d 220; Crawley v. Bauchens (1973), 13 Ill. App. 3d 791, aff’d (1974), 57 Ill. 2d 360; McClellan v. McClellan (1970), 125 Ill. App. 2d 477; Sharpe v. Sharpe (1966), 77 Ill. App. 2d 295.) However, Illinois courts have never viewed “continuing jurisdiction” as limitless. This court, in People ex rel. Strand v. Hametiaux (1970), 46 Ill. 2d 424, 429, denied full faith and credit to a California modification decree, noting that the desire for finality often conflicts with the best interest of the child. There a California court, in April 1967, granted custody to the father, who moved the child to Illinois. After the father was killed in a September 1967 accident, paternal grandparents in Illinois were appointed guardians by an Illinois court. In January 1968, after registered mail notice to the grandparents, the California court modified its decree to grant the California mother custody. This court stated:

“In this case the child was taken from the plaintiff by order of the California court and has since resided in the home of the defendants, except for the month of July, 1967. Neither the child nor the defendants, however, were heard at the California hearing to grant custody to the plaintiff, and we think any determination which purports to be guided by the best interests of the child is under a serious handicap when the child and the people with whom he has been living are not present. *** Other courts when confronted with a foreign custody decree which has been modified at the request, and in favor, of a parent who is still a domiciliary of the foreign State, when the other parent and child are now domiciled in the forum State, have generally refused to grant full faith and credit to the modified decree on the ground that the foreign State no longer had jurisdiction over the other parent and child.”

It directed the Illinois trial court to hold a hearing to determine custody. In Beaulieu v. Carmack (1978), 66 Ill. App. 3d 943, 945, 947, the court, guided by the “welfare of the child,” refused to grant “full faith and credit” to a Maine modification (taking custody from the mother who had lived in Illinois two years with the child) of a Maine custody decree, even though the Maine court asserted it had continuing jurisdiction.

We believe that the decisive issue in this case is whether section 601 of the Act vitiated the circuit court’s June 28, 1974, order limiting the rights of the parties to petition other courts for modification, and also indicated the continuing jurisdiction of the circuit court over the subject matter of the custody of the Siegel children should not have been exercised. Section 601 provides:

“Sec. 601. Jurisdiction — Commencement of proceeding.
(a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification judgment if:
(1) this State is the home state of the child at the time of commencement of the proceedings, or had been the child’s home state within 6 months before the commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reason and a parent or person acting as parent continues to live in this State; or
(2) it is in the best interest of the child that a court of this State assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this State, and there is available in this State substantial evidence concerning the child’s present or future care, protection, training and personal relationships; or
(3) the child is physically present in this State and has been abandoned, or is neglected or dependent, or it is necessary in an emergency to protect him because he has been subject to or threatened with mistreatment or abuse; or
(4) no other state has jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2) or (3), or another state has declined to exercise jurisdiction on its determination that this State is the more appropriate forum to determine custody of the child; and it is in the child’s best interest that the court assume jurisdiction.
(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
(d) A child custody proceeding is commenced in the court:
(1) by a parent, by filing a petition:
(i) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or
(ii) for custody of the child, in the county in which he is permanently resident or found; or
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.
(e) Notice of a child custody proceeding shall be given to the child’s parents, guardian and custodian, who may appear, be heard, and file a responsive pleading. The court, upon showing of good cause, may permit intervention of other interested parties.” (ill. Rev. Stat. 1977, ch. 40, par. 601.)

We note, parenthetically, that section 601 speaks in terms of “jurisdiction” of the subject matter of child-custody determinations. Jurisdiction of the subject matter of such determinations, at least in the traditional sense, is conferred upon our circuit courts by the constitutional provision that “Circuit courts shall have original jurisdiction of all justiciable matters ***.” (Ill. Const. 1970, art. VI, sec. 9.) We eliminate the possibility of confusion by pointing out that “jurisdiction” is not being used by the General Assembly in its traditional subject matter sense, but in the sense of a limitation upon the exercise of the existing jurisdiction. Despite our reservations regarding the statutory language, we believe it will be less confusing if we adhere to it, particularly since the uniform act which is now the law of Illinois speaks in similar terms.

Although, as earlier indicated, our courts have been flexible in their application of the continuing-jurisdiction theory, we believe that section 601 imposed further limitations on its operation. Sections 601(a), (b), and (c) of the Act are, as the father acknowledges, virtually identical to sections 3(a), (b), and (c), of the Uniform Child Custody Jurisdiction Act (Uniform Act) (9 Unif. Laws Ann. 122-23 (1979)), which was adopted by our General Assembly in 1979. Consequently, interpretations of those sections of the Uniform Act are relevant here. The courts of Kentucky, Maryland, Florida and Oregon have construed section 3 of the Uniform Act to deprive the court which rendered the original custody decree of its “continuing jurisdiction” at the point when the children have lost meaningful contact with the State, a construction with which we agree.

The Supreme Court of Kentucky has stated that Kentucky courts do not retain jurisdiction of custody questions indefinitely, even though a divorce court’s original order might state that it retained jurisdiction. (Honigsberg v. Goad (Ky. 1976), 550 S.W.2d 471; Turley v. Griffin (Ky. App. 1974), 508 S.W.2d 764.) In those cases Kentucky courts did not entertain motions by fathers who lived in Kentucky for modification of custody decrees after the mothers who had received custody of the children had lived with them in other States for several years.

The Court of Appeal of Florida has stated that jurisdiction provisions analogous to section 601 have superseded the prior law of “continuing jurisdiction.” Under provisions identical to sections 601(a)(1) and (2), Florida courts had no jurisdiction to grant modification at the request of the father after the mother had lived with the children in another State for approximately years. The court stated that it felt the policy of the Uniform Act was to give only one State jurisdiction, and that exceptional circumstances would be needed to justify relying on the “substantial evidence” basis for jurisdiction if another State satisfied the “home state” test. (Hegler v. Hegler (Fla. App. 1980), 383 So. 2d 1134.) In Detko/Roberts v. Stikelether (Fla. App. 1979), 370 So. 2d 383, the mother who had received custody moved the child to another State. The father and mother had each appeared at some point in the other spouse’s custody-modification action in the other spouse’s State. However, the father took the child to Florida before the final hearing in the mother’s proceedings and sought modification of the custody decree to grant him custody. The court of appeal held Florida courts have no jurisdiction of this modification action.

The Court of Special Appeals of Maryland had occasion to consider jurisdiction provisions similar to section 601, stating that “the cases indicating Maryland’s adherence to the ‘continuing jurisdictional rule’ are, to the extent of any inconsistency with the statute, no longer controlling authorities.” (Howard v. Gish (1977), 36 Md. App. 446, 450, 373 A.2d 1280, 1282-83.) In Howard the mother and child lived in Georgia for two years after the Georgia divorce decree, then in Virginia for three years, and finally in Maryland for two years prior to the mother’s death. Nevertheless, courts of Maryland, not Georgia, had jurisdiction to determine a custody dispute between the Maryland stepfather on one side and the Georgia father and maternal grandmother on the other.

Under provisions identical to section 3(a)(1) and (2) of the Uniform Act, the Supreme Court of Oregon decided that, after the children had lived in Oregon 18 months with the mother, Oregon courts had, and Indiana courts did not have, jurisdiction of custody-modification proceedings, even though the mother had used temporary custody under an Indiana decree to wrongfully remove the children from Indiana. In re Marriage of Settle (1976), 276 Or. 759, 556 P.2d 962.

Counsel for the father quotes a law review hypothetical posed by Professor B. Bodenheimer, reporter for the special committee of the Commissioners on Uniform State Laws which prepared the Uniform Child Custody Jurisdiction Act. That hypothetical situation is primarily based on section 14(a) of the Uniform Act (which has no counterpart in the Illinois act). It states:

“A typical example is the case of the couple who are divorced in State A, their matrimonial home state, and whose children are awarded to the wife, subject to visitation rights of the husband. Wife and child move to state B, with or without permission of the court to remove the children. State A has continuing jurisdiction and the courts in State B may not hear the wife’s petition to make her the sole custodian, eliminate visitation rights, or make any other modification of the decree, even though state B has in the meantime become the “home state” under section 3. The jurisdiction of state A continues and is exclusive as long as the husband lives in state A unless he loses contact with the children, for example, by not using his visitation privileges for three years.” Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand. L. Rev. 1207, 1237 (1969).

Section 14(a) states:

“(a) If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Act or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction.” (9 Unif. Laws Ann. 153-54 (1979).)

Section 14(a) clearly does not excuse the original court from continuing to meet the jurisdictional standards of section 3. Professor Bodenheimer agrees: “In other words, a person seeking a modification of a custody decree must address his petition to the prior custody court unless that court no longer has jurisdiction under the ‘home state’ or ‘strong contacts’ test.” (Emphasis supplied.) (22 Vand. L. Rev. 1207, 1236.) The California Court of Appeal, after quoting the hypothetical, stated, “All petitions for modification are to be addressed to the state which rendered the original decree if that state has jurisdiction under the Act [citation].” (Emphasis added.) (Palm v. Superior Court (1979), 97 Cal. App. 3d 466, 468, 158 Cal. Rptr. 786, 792.) As thus interpreted, the Bodenheimer hypothetical is in accord with the Supreme Court of Colorado, which has indicated that Colorado courts will defer to the “continuing jurisdiction” of the original State under Colorado’s version of the Uniform Act, so long as the court which rendered the original custody decree, at the time of the modification proceeding, has jurisdiction under criteria of the Uniform Act. Fry v. Ball (1975), 190 Colo. 128, 544 P.2d 402. See also Fernandez v. Rodriguez (Sup. Ct. 1978), 97 Misc. 2d 353, 411 N.Y.S.2d 134.)

As is apparent from these cases and Professor Bodenheimer’s comments, the crucial question is whether the State of the original custody decree still retains “jurisdiction.” As the commissioners’ note to section 3 of the Uniform Act states:

“The first clause of the paragraph [2] is important: jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family.” 9 Unif. Laws Ann. 123-24 (1979).

In the present case the section 601 standards (identical to those of section 3 of the Uniform Act) required for exercise of the Illinois court’s “continuing jurisdiction” are simply not met. We do not interpret Professor Bodenheimer’s comments as indicating disagreement, in such circumstances, with the conclusion we reach.

Unless the facts of the present case fit within one or more of the four subsections of section 601(a) of the Act, the circuit court did not have subject matter jurisdiction, as that term is used in the Act, for the purpose of modifying the Siegel custody decree in January 1978. We do not believe the facts before us fit those criteria. The “home state” requirement of section 601(a) is tested in this case as of the winter of 1977-78. At that time Illinois was not the home State of the Siegel children, since they had by then lived in California for over three years. Although the Act, unlike the Uniform Act, does not expressly define “home state” in terms of six months’ residence, Illinois could not be said to have then been the Siegel children’s “home state” in any ordinary sense of the words.

Nor do our facts satisfy the requirements of section 601(a)(2). That section is identical to section 3(a)(2) of the Uniform Act, the purpose of which is “to limit jurisdiction rather than to proliferate it.” (Commissioners’ Note, sec. 3, 9 Unif. Laws Ann. 124 (1979).) It should not be used to excess by courts eager to justify jurisdiction. (See Ratner, Procedural Due Process and Jurisdiction to Adjudicate, 75 Nw. U.L. Rev. 363, 392 (1980).) Although that section has been considered in four appellate court cases, none involved facts similar to this case. (In re Custody of Hawkins (1979), 77 Ill. App. 3d 873; In re Custody of Holman (1979), 77 Ill. App. 3d 732; In re Custody of Ehr (1979), 77 Ill. App. 3d 540; Tanner v. Smith (1978), 61 Ill. App. 3d 456.) Nothing before us indicates that the interests of the children will be better served if the modification proceedings are heard in Illinois. While the children were born here and lived here until 1974, and while their grandparents and father reside here, those facts indicate only that the children once had a significant connection with Illinois, not that in the winter of 1977-78 a significant connection with Illinois existed. As earlier noted, section 3(a)(2) of the Uniform Act emphasizes availability of evidence as a factor in determining which court shall act. Here, that evidence is largely concentrated in California. Their mother and an aunt and uncle live there, and the children had lived there since 1974, a period which, as of December 1977, covered three highly formative years. The evidence concerning their present home life, health, education and personal relationships was available there, rather than in Illinois.

Section 601(a)(3) is inapplicable, since the children were not abandoned or neglected within Illinois. Section 601(a)(4) cannot apply, because California had jursidiction under the standards of section 601(a)(1) and (2), and it had not refused to exercise that jurisdiction.

California courts appear to give some effect to the concept of “continuing jurisdiction,” noth withstanding provisions similar to section 601 of the Act. (Palm v. Superior Court (1979), 97 Cal. App. 3d 395, 158 Cal. Rptr. 786; Smith v. Superior Court (1977), 68 Cal. App. 3d 457, 137 Cal. Rptr. 348.) Those cases are distinguishable, however, since here the modification proceedings in California (the new “home state”) were begun prior to the Illinois (the forum - “divorce decree” State) proceedings. In Palm, modification proceedings in the “divorce-decree” State were deferred to, in part, because they had priority, and in Smith no proceedings in the new “home state” were competing with the proceedings in the forum-“divorce decree” State. We believe that California courts, if confronted with a case parallel to the present case, might well reach the result we do, since California courts impose limits on the exercise of “continuing jurisdiction” by means of active application of the doctrine of forum non conveniens. (Bosse v. Superior Court (1979), 89 Cal. App. 3d 440, 152 Cal. Rptr. 665; In re Marriage of Kern (1979), 87 Cal. App. 3d 402, 150 Cal. Rptr. 860; Schlumpf v. Superior Court (1978), 79 Cal. App. 3d 892, 145 Cal. Rptr. 190; Clark v. Superior Court (1977), 73 Cal. App. 3d 300, 140 Cal. Rptr. 709.) For example, in Bosse, the court of appeal held that the California trial court, which had granted the divorce, had abused its discretion in failing to stay the father’s May 1978 contempt and custody-modification proceedings on forum non conveniens grounds pending the outcome of similar proceedings commenced by the mother in June 1978 in Montana, where she and the child had lived since the January 1977 divorce. The court noted that Montana was the child’s home State, and that evidence of present or future care, protection, training and personal relationships was more readily available there.

Although the doctrine of forum non conveniens could conceivably afford a basis for our decision, we believe it preferable to use the statutory grounds, particularly since the Uniform Act has now been adopted here. The language of section 601 of the Act is too explicit to allow any doubt that in the winter of 1977-78 the circuit court should have declined to act on matters relating to the custody of the Siegel children. Illinois, which was once the “home state,” had been superseded in that capacity by California. Information concerning the children’s mental and physical well-being, their education and training, their personal relationships with friends and some family members, all of which is vital to intelligent custody judgments, is much more readily available to the California courts. True, contesting visitation, support and custody questions in California, rather than Illinois, will be more inconvenient and costly for the father if such contests become necessary. It is, however, an unpleasant fact that, in a highly mobile society with a high incidence of marital instability, problems such as this are not infrequent. Section 601 was designed to provide that custody disputes be resolved in the forum where the facts necessary to a determination of the children’s best interests are most readily accessible. Its adoption by our legislature superseded the “continuing jurisdiction” principle wherever that principle conflicts with the statutory provisions. That, in our judgment, is true here.

The law of Illinois in January 1978 viewed California as the appropriate forum for determining child-custody questions, a subject with which the contempt proceedings were inextricably interwoven. In these circumstances, even though the mother was in violation of the circuit court’s order, it was an abuse of that court’s discretion to adjudge her in contempt and terminate support payments.

The judgment of the appellate court is accordingly affirmed insofar as it reversed the finding of contempt and the termination of support payments; it is reversed insofar as it affirmed the “continuing jurisdiction” of the circuit court and remanded for a further hearing on the contempt question. The cause is remanded to the circuit court with directions to dismiss the contempt petitions and vacate the orders entered in connection therewith.

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

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


source: Caselaw Access Project

author: MR. JUSTICE WARD

license: Public Domain

text:
    (No. 53556.
    PROVISO TOWNSHIP HIGH SCHOOL DISTRICT NO. 209 et al., Appellees and Cross-Appellants, v. THOMAS C. HYNES, Assessor, et al., Appellants and Cross-Appellees.

      Opinion filed November 13, 1980.

      Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Mark V. Chester and Ronald P. Stake, Assistant State’s Attorneys, of counsel), for appellants.
    Stewart H. Diamond and John B. Murphy, of Ancel, Glink, Diamond & Murphy, P.C. and John H. Hilbert, all of Chicago, for appellees.
   MR. JUSTICE WARD

delivered the opinion of the court:

The subject of this appeal is the validity under article IX, section 6, of the Illinois Constitution of two recently enacted provisions of the Revenue Act of 1939 which grant exemptions from real estate taxes: section 19.23 — la, as amended and effective January 31, 1980 (Pub. Act 81 — 1223), referred to hereafter as the “annual homestead exemption,” and section 19.23 — 4, which was enacted September 26, 1979, and became effective July 1, 1980 (Ill. Rev. Stat. 1979, ch. 120, par. 500.23 — 4), referred to hereafter as the “homestead improvement exemption.”

Plaintiff Proviso Township High School District No. 209 filed a class action in the circuit court of Cook County against the defendants Thomas C. Hynes, Edward J. Rose-well, and Stanley J. Kusper, who are respectively the assessor, the treasurer and ex officio collector, and the clerk of Cook County, seeking a declaration that the provision for the homestead-improvement exemption was unconstitutional and that the provision for the annual homestead exemption was unconstitutional as applied in Cook County.

The circuit court rendered a judgment adverse to the defendants. They brought an appeal under Rule 302(a) (73 Ill. 2d R. 302(a)), and the plaintiffs cross-appealed from a portion of the judgment.

Section 19.23 — la, the annual homestead exemption, is applicable to real estate taxes both for 1978 and 1979, but only the taxes for the latter year are involved in this proceeding. On August 4 we entered an order staying the judgment of the circuit court pending final determination of this appeal, and authorizing the defendants to collect the second installment of the real estate taxes for 1979 on the same basis that was used for the 1978 taxes, subject to any later adjustment which might be required if our decision should be in favor of the plaintiffs.

The complaint alleges that the named plaintiff receives a portion of the proceeds of real property taxes collected in Cook County. The plaintiff filed its action individually and on behalf of all other governmental bodies in Cook County which are similarly situated. The circuit court certified a class of all school districts in the county, and allowed 34 of these to be made additional parties plaintiff, but the court declined to include other taxing bodies in the class, since there was no record that the latter had been given notice of the action. While there may be a question as to the plaintiff’s standing to maintain this action, the defendants have not raised it, and we elect to consider the case on its merits.

We turn first to the annual homestead exemption provision, section 19.23 — la, which is described as follows:

“An annual homestead exemption limited, except as hereinafter provided with relation to cooperatives, to a reduction in the equalized assessed value of homestead property equal to the increase in such value for 1978 and subsequent years above the equalized assessed value of such property for 1977, up to a maximum of $1,500 for 1978 and $3,000 for 1979 and subsequent years.
‘Homestead property’ shall include residential property that is occupied by the owner or owners thereof as his or their principal dwelling place or, in counties where real property is classified for purposes of taxation in accordance with Section 4 of Article IX of the Constitution, residential properties classified in the lowest assessment classification. In the case of land improved with an apartment building owned and operated as a cooperative, the maximum reduction from the equalized assessed value shall be limited to the increase in such value for 1978 and subsequent years above the equalized assessed value of such property for 1977, up to a maximum of $1,500 for 1978 and $3,000 for 1979 and subsequent years, multiplied by the number of apartments occupied by a person or persons who is liable, by contract with the owner or owners of record, for paying real estate taxes on the property and is an owner of record of a legal or equitable interest in the cooperative apartment building, other than a leasehold interest.
Where married persons maintain and reside in separate residences qualifying as homestead property under this Section, each residence shall receive 50% of the total reduction in equalized assessed valuation provided by this Section.
In lieu of procedures for exemptions required elsewhere in this Act, the assessor, county assessor, supervisor of assessments or board of assessors may determine the eligibility of residential property to receive the homestead exemption provided by this Section by application, visual inspection, questionnaire or other reasonable methods. Such determination shall be made in accordance with guidelines established by the Department of Revenue.” Pub. Act. 81-1223.

The language italicized in the above quotation was added by the amendment of 1980.

Section 19.23 — la was enacted in 1978. (1978 Ill. Laws 1969.) The definition in the second paragraph of the term homestead then read: “ ‘Homestead property’ shall include property that is owned and used exclusively for a residential purpose.” An amendment in the following year (1979 Ill. Laws 1562) replaced that definition with the following: “ ‘Homestead property’ shall include residential property that is occupied by the owner or owners thereof as his or their principal dwelling place.” This amendment also added the third paragraph of the section.

Cook County has a population of more than 200,000, and is thus empowered by article IX, section 4(b), of the Constitution to classify real property for purposes of taxation. It was stipulated by the parties that an ordinance of Cook County presently in effect divides real property into six assessment classifications, in each of which property is to be assessed at a specified percentage of market value, ranging from 16% to 40%.

One of the two classes which fall in the 16% bracket is class 2, which includes “real estate used as a farm, or real estate used for residential purposes when improved with a house, an apartment building of not more than six living units, or residential condominium, a residential co-operative or a government-subsidized housing project if required by statute to be assessed in the lowest assessment category. ”

It appears from the stipulation that the assessor has established some 99 subclasses within class 2 based on the physical characteristics of improvements on property. These subclasses are not mentioned in the county ordinance, but are apparently an administrative creation, and the stipulation does not disclose the purpose for which they were devised. It was stipulated that the assessor will only consider eligible for the annual homestead exemption property which falls within certain of these subclasses, 17 in number, which are enumerated in the stipulation. The subclasses which will not be considered eligible are listed in the defendants’ answer. These include farm buildings not used as residences, such as silos.

It was also stipulated that the defendants do not maintain records which indicate the ownership and occupancy of all units or parcels within the county, that the assessor will not endeavor to ascertain occupancy by requiring an application or by inspection, questionnaire, or otherwise, and that he will make his determination of eligibility without regard to whether the owner resides on the premises or whether the premises are his principal dwelling place.

Article IX, section 6, of the Illinois Constitution of 1970 provides:

“The General Assembly by law may exempt from taxation only the property of the State, units of local government and school districts and property used exclusively for agricultural and horticultural societies, and for school, religious, cemetery and charitable purposes. The General Assembly by law may grant homestead exemptions or rent credits.”

The circuit court held that the term “homestead,” as used in this constitutional provision, means residential property occupied by the owner or owners thereof as his or their principal dwelling place, and that a homestead exemption must therefore be limited to such property. Since the first clause of the second paragraph of section 19.23 — la employs that formula it would thus be valid standing alone. The court concluded that another definition of homestead that this paragraph provides, seemingly as an alternative, for counties which classify property would be unconstitutional unless subject to the same limitation. The court accordingly held that the exemptions which the defendants propose to grant would be valid if, but only if, they were confined to property included in the 17 eligible subclasses of class 2, and only if the defendants “should have information upon which to establish that the owner or owners reside therein as his or their principal dwelling place.”

The defendants take the view that the legislature may grant a homestead exemption to all real property on which there are improvements used only for residential purposes. The plaintiffs, on the other hand, contend that a homestead exemption must be limited to a single-family dwelling unit occupied by the owner claiming the exemption.

The estate of homestead in real property (Ill. Rev. Stat. 1979, ch. 52, par. 1 et seq.) has existed by statute in Illinois since 1851 (1851 Ill. Laws 25) and was in effect when the Illinois Constitution of 1970 was adopted and ratified (Ill. Rev. Stat. 1969, ch. 52, par. 1 et seq.). Although the amount of the exemption has increased over the years, the significant provisions otherwise remained the same.

The act of 1851 defined a homestead as “the lot of ground and the buildings thereon occupied as a residence, and owned by the debtor, being a householder, and having a family, to the value of one thousand dollars.” (1851 Ill. Laws 25.) By an amendatory act of 1873 the homestead estate was enlarged to include land occupied under a lease. (1873 Ill. Laws 99.) That the person claiming the homestead exemption must occupy the property as a residence, however, has remained a necessary ingredient in the successor statutes to the act of 1851 (See 1871-72 Ill. Laws 478; 1873 Ill. Laws 99), and that requirement has been referred to frequently in the decisions of this court. Tourville v. Pierson (1866), 39 Ill. 447; Sever v. Lyons (1897), 170 Ill. 395; Barto v. Kellogg (1919), 289 Ill. 528; cf. Rock Island Bank & Trust Co. v. Lamont (1935), 361 Ill. 432, 434-35; Morris Investment Co. v. Skeldon (1948), 399 Ill. 506, 509; Note, The Illinois Homestead Exemption, 1950 Ill. L. F. 99, 105.

The Constitution of 1870, although directing that the General Assembly should pass liberal homestead and exemption laws (Ill. Const. 1870, art. IV, sec. 32), did not include homesteads among the property which the legislature might exempt from taxation (Ill. Const. 1870, art. IX, sec. 3).

In 1969 the General Assembly enacted an amendment to the Revenue Act granting a homestead exemption to real property owned by a person aged 65 years or older and occupied by him as a residence. (1969 Ill. Laws 4118.) In May 1971, that act was declared unconstitutional in Hoffman v. Lehnhausen (1971), 48 Ill. 2d 323. The court rejected a contention that the exemption was authorized by article IV, section 32, since the homestead exemption under Illinois law was an exemption from a forced sale only, not from taxes. (48 Ill. 2d 323, 327.) The provision in question was repealed, and a successor statute enacted shortly after the Constitution of 1970 became effective was upheld in Doran v. Cullerton (1972), 51 Ill. 2d 553.

The act before the court in Doran (Ill. Rev. Stat. 1971, ch. 120, par. 500.23 — 1) also limited the exemption to real property occupied as a residence. That decision is thus not dispositive of the case in hand.

Logic suggests that in using the term “homestead” to describe the tax exemption which it was authorizing the legislature to provide, the drafters of article IX, section 6, would draw on the meaning of that term as it was embodied in the statutes on that subject. A critical element of the statutory homestead exemption was occupancy of the property by the person claiming the exemption. As we have seen, the statutory homestead exemption was directed only against the forced sale of the property to meet the debts of the homesteader. The purpose of the new constitutional provision was to extend that exemption to real estate taxes. In the case of a person occupying the property under a lease, the tax exemption could be provided in the form of “rent credits,” where the real estate tax had been made proportionately payable by the tenant. That situation is of course not addressed by the present statute. In the more usual case the taxpayer is the owner, and it is he who must be an occupant of the premises.

We find nothing in the Proceedings of the Sixth Illinois Constitutional Convention (hereafter referred to as Proceedings) which points in a different direction.

Article IX, section 6, was submitted to the convention by the Committee on Revenue and Finance. With respect to the last sentence of that section (which at that point was a separate paragraph), the report of the committee stated:

“The last paragraph permits the General Assembly to exempt all or part of the value of property occupied as a residence by the owner and provides that credits may be granted to those individuals who pay property taxes indirectly through rent payments.” 7 Proceedings 2150.

In elaborating on this description the report stated further:

“The final sentence permitting the granting of homestead exemptions or rent credits represents a major change. The Committee is acutely aware of the hardships which the payment of property taxes on residential property can cause — especially when the homeowner, by reason of retirement or a change in family circumstance, has a greatly reduced income.
Many states have moved to meet this problem by providing for the exemption from taxation of the assessed value of owner-occupied homes. In some cases, the exemptions are available to all those who occupy a homestead. In other cases, benefits are limited to those who are elderly or in need. Unfortunately, this kind of exemption provides no relief to renters who directly pay no real estate taxes but whose rent payments are higher by reason of property taxes paid by the owners of property which they occupy. The Committee proposal will permit the General Assembly to develop a system whereby credits for real estate tax payments are passed through to the renter so that he may receive a benefit comparable to the homeowner.” 7 Proceedings 2158.

The only dissent expressed was by Delegate Ray H. Garrison (7 Proceedings 2160), He did not question that the committee proposal was limited to occupants of the property. His suggestion, on the contrary, was that the exemption be further limited by confining it to elderly persons of limited means.

In presenting the proposed language of article IX, section 6, to the floor of the convention, Delegate Durr described it in the following words:

“The second paragraph of this section is really the area that is new, and your main concern, perhaps, might be whether we want to permit the General Assembly to grant homestead exemptions and rent credits as they see fit, or whether you would want to limit it in some way, as Delegate Garrison would, assuming that you would want it to permit it to do so at all.
The rent credits [are] intended to permit the General Assembly to extend tax relief to people who rent land — or residences — and whose rent, about a fourth to a third of it, according to what we heard, is to pay the real estate taxes that are — to which the owner of that residence they are renting is subjected.” 3 Proceedings 1918.

In response to a question by Delegate Lewis as to why homestead exemptions could not be granted under the 1870 Constitution, Delegate Scott made the following observations:

“MR. SCOTT: Mr. President and delegates, I would like to add just a little to why is it in there. We had some consternation in committee with the — with what the General Assembly did last year with the homestead exemption.
As you well know, they passed a bill that provides a homestead *** exemption — it’s been amended at the present session — to give a homestead exemption to anyone sixty-five years of age or older, having title to a residence and living in that residence.
Now in my own mind, I think it’s unconstitutional; it violates uniformity. But the court will probably lean over backwards to hold it constitutional. But you see, that homestead exemption gives that exemption to the millionaire as well as maybe my father or your grandfather or someone like that that’s trying to live on a fixed income, and he’s sixty-five or older and the property taxes are squeezing him some, you see.
Now this, by the “may,” would give the General Assembly the right, if it wants to, to pass the right kind of a homestead *** exemption like some eighteen states have, which — I am thinking, for instance, of a person sixty-five or older with a certain fixed income. He might be living on a pension or his income is maybe $1,500 a year or something, and he’s trying to stay in his home, be a good citizen, and pay taxes, and give him a little break.” 3 Proceedings 1919.

Delegate Scott went on to point out that the committee had not deemed it advisable to limit the constitutional provision so as to authorize exemptions only for the elderly person of limited means. His remarks are significant in emphasizing that the committee’s concern was not with persons or entities who owned residential property solely as an investment, but with owner-occupants who were threatened with the loss of their residence through high property taxes.

In considering the understanding of the meaning of the words used by the voters who adopted the constitution (Client Follow-Up Co. v. Hynes (1979), 75 Ill. 2d 208, 222), we note also the convention’s explanation of the constitutional provision given to the voters prior to the referendum:

“The second sentence is new. It permits tax relief or tax credit to people who own or rent their homes. Such relief may be limited to the elderly or needy, or, at the discretion of the General Assembly, may be granted to everyone.” (Emphasis added.) 7 Proceedings 2738.

Contrary to the defendants’ contention, the statement does not support their thesis that the exemption may be granted to any owner of residential property without regard to his occupancy of the premises. Although not employing the word “occupy,” in coupling people who own their homes with those who rent them, the statement, we believe, inferentially excludes one whose relationship to a residential structure is only that of an investor.

In connection with the question under consideration, the plaintiffs assert that a homestead exemption cannot be validly granted where the owner is a corporation, since the latter cannot “reside” in a building. We agree that the owner-occupant must be a natural person. We point out, however, that the beneficial owner of property held under a land trust is liable for real estate taxes on the property (People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479), and if the beneficiary is a natural person residing on the premises he would qualify for the exemption even if the trustee were a corporation.

The plaintiffs, by their cross-appeal, object to the judgment of the circuit court because it would permit a homestead exemption to be granted to the owner of an apartment building containing as many as six dwelling units so long as he resides in one of them, the others being occupied by his lessees. The plaintiffs take the position that such a situation is incompatible with the homestead concept, and that the exemption from taxes should be confined to owners of single-family residences.

Implicit in the plaintiffs’ contention is the proposition that the owner’s exemption should apply only to that part of his property which he occupies as a residence. So far as the exemption under the homestead statute is concerned, the plaintiffs cite no authority in support of their position, and we note that there is authority to the contrary. Thus, where an owner resides on one portion of a single lot, the entire lot will qualify for the exemption even if the remainder is leased to another person. Hubbell v. Canady (1871), 58 Ill. 425, 427; Stevens v. Hollingsworth (1874), 74 Ill. 202, 205-08; Sever v. Lyons (1897), 170 Ill. 395, 398.

So far as the exemption from real estate taxes authorized by article IX, section 6, is concerned, in any event, a multiunit building is taxed as a single structure, and the tax exemption, if one exists, necessarily runs to the owner as the taxpayer. The drafters of the constitutional provisions were well aware of this situation, but considered that any modification of it should be accomplished by legislation providing rent credits to the tenants, which is also permitted under section 6. That this was the drafters’ position is shown by the Report of the Committee on Revenue and Finance (7 Proceedings 2150, 2158). The plaintiffs’ proposal that the owner be denied any exemption at all finds no support in the proceedings of the convention.

The plaintiffs also suggest that under some circumstances the allowance of an exemption to the owner-occupant of an apartment building might discriminate against an owner of a single-family home. The plaintiffs have not shown, however, how such a discrimination could or would arise.

There remains for consideration the validity of the homestead-improvement exemption act, section 19.23 — 4 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 500.23 — 4). For present purposes it will be sufficient to set out the first paragraph, which is as follows:

“Beginning on January 1, 1980, in all counties, there is allowed a homestead improvement exemption pursuant to Article IX, Section 6 of the 1970 Constitution, limited to a maximum of up to $15,000 in actual value of improvements per dwelling unit. Homestead property for purposes of this exemption shall include all real property on which residential buildings consisting of less than 55 dwelling units are situated and which is owned and used primarily for residential purpose by either the owner or other persons who rent or lease such property or portions thereof. Real property on which single family residences are situated and which is eligible for the exemption provided in Sections 19.23 — 2 and 19.23 — 3 of the ‘Revenue Act of 1939’ shall not be eligible for an exemption under this Section. The exemption provided for in this Section shall last for a period of 4 years from the date the improvements are completed.”

The circuit court summarily held this act unconstitutional under the exemption provisions of article IX, section 6, of the Constitution, and we concur in that determination. While there are other aspects of the Act which may raise constitutional questions, it is enough to point out that the Act does not require that the owner be a natural person who resides in the building. In their brief the defendants support the Act solely on the ground that it is a form of rent credit. The Act, however, makes no provision whatever for rent credits, and the entire benefit of the exemption, which could reach the sum of $3,600,000 for a single building, is conferred upon the owner.

To summarize, we hold that no annual homestead exemption from taxes on real property may be granted by the defendants pursuant to section 19.23 — la unless the property is occupied by the owner or owners thereof as his or their principal dwelling place, and we affirm the judgments of the circuit court that as applied in Cook County by the defendants without that requirement the section would be invalid. We also affirm that part of the judgment below which holds that section 19.23 — 4, which relates to the housing-improvement exemption, is unconstitutional on its face.

The judgment of the circuit court also requires that before issuing tax bills containing the homestead exemption “the defendants have information upon which to establish that the owner or owners reside therein as his or their principal dwelling place.” The last paragraph of section 19.23 — la authorizes a number of ways in which eligibility to receive the exemption may be determined, but provides that the determination be made in accordance with guidelines established by the Department of Revenue. The parties advise us that the Department has not yet established any such guidelines. Until the Department has done so, the defendants may use any of the methods authorized by the section to ascertain whether property is owner-occupied. With respect to taxes for 1980 and later years the judgment of the circuit court is affirmed as modified herein.

Pursuant to our interim order of August 4, referred to previously, bills for the second installment of taxes for the year 1979 allowing the exemption without regard to owner-occupancy have already been sent out, and some taxpayers allowed the exemption will have paid a lesser amount in taxes than that for which they would be liable without the exemption. In those cases in which the defendants seek to bill any taxpayers for a deficiency, no bill should be sent out unless the defendants have information upon which to establish that the owner or owners do not reside on the property in question as his or their principal dwelling place.

The defendants represent that there are some 1 million parcels potentially eligible for the homestead exemption, and that they do not maintain records which show the ownership and occupancy of all these parcels. To expedite the collection of taxes by the defendants, and in the interest of sound judicial administration, we remand this cause to the circuit court for such further proceedings and orders as may be necessary to implement our decision with regard to the billing and collection of taxes for both the years 1979 and 1980.

Affirmed as modified; cause remanded, with directions.


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE UNDERWOOD,

text:
    (No. 53134.
    A. E. STALEY MANUFACTURING COMPANY, Appellee, v. SWIFT & COMPANY, Appellant.

      Opinion filed November 18, 1980.

    Rehearing denied March 27, 1981.

      UNDERWOOD and MORAN, JJ., dissenting upon denial of rehearing.
    Frederic S. Lane, Robert B. Millner, Marc C. Simon and Kirk R. Ruthenberg, of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, and Robert D. Winters, of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, and Sacks, Montgomery, Pastore & Levine, of New York City (Stuart M. Levine and Nicholas J. Niers, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This is an appeal from a decision of the circuit court of Macon County granting a motion to dismiss filed by defendant, Swift & Company, under section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c)). The appellate court reversed and remanded, one justice dissenting. (80 Ill. App. 3d 122.) We granted Swift leave to appeal.

Plaintiff, A. E. Staley Manufacturing Company, is a Delaware corporation with its principal office and place of business in Decatur, Macon County, Illinois. Defendant, Swift & Company, is also a Delaware corporation with its principal place of business in Chicago, and it conducts some business in Macon County.

On March 1, 1976, the parties entered into an agreement whereby Staley purchased from Swift, inter alia, a soybean-processing plant in Des Moines, Iowa. The plant was then under construction by Swift, and, under the terms of the agreement, construction was to be completed by Swift.

On September 12, 1977, at 2:49 p.m., Swift filed suit against Staley in the Polk County district court in Des Moines. In that suit, presently in the discovery stage, Swift seeks recovery of $4.5 million retained by Staley to secure construction of the soybean-processing plant.

Shortly thereafter, on the same day as the filing of Swift’s Iowa action, Staley filed suit against Swift in Illinois in the Macon County circuit court. Staley seeks $39.8 million in damages allegedly sustained as a result of Swift’s failure to fulfill its obligation of completing construction of the soybean-processing plant.

In its Iowa action, Swift has also named French Oil Mill Machinery Company as a defendant. French allegedly made certain guarantees to Swift, and Swift seeks indemnification from French for much of Staley’s claim against Swift. Swift claims that it is not aware of any basis for obtaining jurisdiction over French in the Illinois courts.

On October 3, 1977, Swift filed in the Illinois action a document captioned: “Motion To Dismiss For Forum Non Conveniens Or In The Alternative To Stay This Proceeding Pending Disposition Of A Prior Suit In Iowa Between The Parties Hereto Concerning The Same Contract Which Is The Subject Matter Of This Suit.” In the body of the motion itself, Swift explains at some length that it filed its Iowa action prior to Staley’s Illinois action, but it relies primarily on forum non conveniens as the basis of its motion. The circuit court denied the motion, finding that both parties have their principal offices in Illinois and that, under the terms of their agreement, Illinois law would govern interpretation of the agreement. The appellate court affirmed, citing the same factors as the circuit court, but also finding that most of the principals involved are Illinois residents, that most discoverable paper work is in Decatur or Chicago, and that the economic impact of the litigation would be greater on Illinois. (65 Ill. App. 3d 427.) On March 29, 1979, this court denied a petition for leave to appeal filed by Swift. 74 Ill. 2d 585.

Prior to this court’s denial of Swift’s petition for leave to appeal, Swift filed its second motion to dismiss in the Macon County circuit court on January 11, 1979. Relying on section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c)), Swift claimed that it had filed its Iowa action prior to Staley’s Illinois action and that dismissal of Staley’s action was therefore required. Section 48(1)(c) provides:

“Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
That there is another action pending between the same parties for the same cause.”

The circuit court found that Swift had, in fact, filed its action in Iowa 41 to 71 minutes prior to Staley’s filing of the Illinois action. Because of Swift’s prior filing in Iowa, the circuit court felt that it was compelled to grant Swift’s motion to dismiss, and it did so. On appeal by Staley, the appellate court reversed the judgment of the circuit court and remanded the cause to that court. (80 Ill. App. 3d 122.) Finding that section 48(1)(c) was adopted from a New York statute and ruling that judicial construction of the New York statute accompanied Illinois’ adoption of section 48(1)(c) (Hansen v. Raleigh (1945), 391 Ill. 536, 549), the appellate court held that the respective filing times of the actions should be disregarded and that section 48(1)(c) is inoperative when both actions are filed on the same day, citing Avery v. Title Guaranty & Trust Co. (1930), 230 App. Div. 519, 245 N.Y.S. 362. The appellate court held that Swift’s section 48(1)(c) motion is addressed to the discretion of the trial court and that Swift’s prior filing of an action in Iowa did not mandate dismissal of Staley’s Illinois action. The appellate court accordingly directed the circuit court to consider the motion as calling for the exercise of the court’s discretion. 80 Ill. App. 3d 122, 126.

In its appeal to this court, Swift argues that section 48(1)(c) mandates dismissal of Staley’s action and that the appellate court’s decision fails to recognize the salutary purpose of that statute to avoid duplicative litigation. Swift points out that the New York decision in Avery, relied upon by the appellate court, is not a decision of that State’s highest court and that this court has in the past refused to follow New York cases under section 48(1)(c). See Skolnick v. Martin (1964), 32 Ill. 2d 55, 57-60.

Our reading of Skolnick indicates that the court there refused to follow New York cases because it found them to be contrary to “the purpose and spirit of the Civil Practice Act” (32 Ill. 2d 55, 59), and it is a well-recognized rule of statutory construction that the interpretation placed upon a statute need not be followed by the courts of a State adopting that statute where such an interpretation is inconsistent with the policy of the adopting State (2A A. Sutherland, Statutes and Statutory Construction sec. 52.02, at 330 (4th ed. 1973)). There therefore existed a basis for the court’s decision in Skolnick to refuse to follow New York cases.

As to the New York decision in Avery, relied upon by the appellate court here, we acknowledge that the decision is of an intermediate court and is not entitled to the same effect as a decision of the court of last resort in that State. (2A A. Sutherland, Statutes and Statutory Construction sec. 52.02, at 330 (4th ed. 1973).) We nonetheless find that adoption of the Avery rationale, for the reasons stated hereinafter, does not subvert Illinois policy of avoiding duplicative litigation, and we agree with the appellate court that dismissal of Staley’s action was not mandated by section 48(1)(c).

Before discussing in detail the merits of the issues presented, we wish to express our disapproval of the manner in which Swift has sought dismissal of Staley’s action. First, we find it somewhat inconsistent for Swift to speak of the virtues of avoiding multiplicity of litigation and then to assert its bases for dismissal one at a time as it has done here. Such a piecemeal approach does little to streamline litigation. Second, Swift has sought dismissal under the doctrine of forum non conveniens, and later under section 48(1)(c), as if these were two mutually exclusive procedural devices. To the contrary, we perceive section 48(1)(c) and forum non conveniens as interrelated procedural devices which may and should be used together when another action is pending and defendant feels that one forum is inconvenient. We acknowledge that the pendency of another action, unlike availability of another forum (Restatement (Second) of Conflict of Laws sec. 84 (1971)), is not a prerequisite to a claim of forum non conveniens as it is under section 48(1)(c), and we acknowledge that the doctrine of forum non conveniens does not encompass all factors which may be relevant in seeking dismissal or other appropriate relief under section 48(1)(c). Section 48(1)(c) and forum non conveniens should, nonetheless, be used together where, as here, there is another action pending and defendant believes that one forum is inconvenient. Third, we question Swift’s filing of its motion under section 48(1)(c) during the pendency of its prior appeal from the circuit court’s forum non conveniens ruling, since the circuit court was without jurisdiction to entertain the second motion at that time. (City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472.) We nonetheless choose to address the merits of the issues raised, since we consider this to be a proper case for the exercise of our supervisory authority (Ill. Const. 1970, art. VI, sec. 16). A Civil Practice Act question of considerable importance to the bar and the courts is presented, this is the second interlocutory appeal in this cause, and no hearing on the merits has yet been held. (Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61, 67-68.) Judicial economy and common sense dictate a final disposition of the matters here raised, and a dismissal of the appeal by this court could result in further litigation under section 48(1)(c). We therefore proceed to the merits.

As set forth more fully above, section 48(1)(c) provides that a motion for dismissal “or for other appropriate relief” may be made where “there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(c).) The reference in section 48(1)(c) to “other appropriate relief” makes it obvious that dismissal is not mandated or the only form of relief afforded by that statute, as the circuit court seemingly presumed. Second, no mention is made in section 48(1)(c) of the respective filing times of the actions, and it is therefore apparent that the statute does not attribute any significance to that factor. On this point we agree with the analysis of the appellate court in Continental Grain Co. v. FMC Corp. (1975), 27 Ill. App. 3d 819, 822-25. That one action is filed prior to the other therefore would not be determinative.

The purpose of section 48(1)(c) is to avoid duplicative litigation (People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 255; People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 290), and the trial court’s analysis should be geared toward effectuating that purpose. Notwithstanding this policy, however, we do not believe that the legislature intended that the filing of a section 48(1)(c) motion should result in automatic dismissal or that two separate actions concerning the same subject matter could never proceed simultaneously. The more reasonable construction is that the circuit court possesses some degree of discretion in ruling upon the motion and that multiple actions in different jurisdictions, but arising out of the same operative facts, may be maintained where the circuit court, in a sound exercise of its discretion, determines that both actions should proceed (Restatement (Second) of Conflict of Laws sec. 86 (1971)). The circuit court here felt that it had no discretion in this matter and therefore failed to conduct an appropriate analysis of the situation. With the benefit of the parties’ briefs and argument on the questions presented, we have nonetheless considered carefully the questions raised, and in the exercise of this court’s power to enter any relief that the trial court may have afforded (73 Ill. 2d R. 366(a)(5)), we hold that Staley’s action in the Illinois courts is not barred by section 48(1)(c). In successfully defending Swift’s prior motion to dismiss on the basis of forum non conveniens, Staley has demonstrated that this litigation has a legitimate and substantial relation to Illinois, and Swift has presented no additional grounds from which we could conclude that Staley’s action cannot be maintained in the courts of this State.

Also of importance to us in our analysis is that dismissal of Staley’s action would force it to seek the relief it desires by way of counterclaim in Swift’s Iowa action. It is not clear that such a course is required under Iowa procedural rules (see Iowa R. Civ. P. 29 (counterclaim need not be pleaded where the relief which would be sought is the subject of an action pending elsewhere), yet a ruling here against Staley would create such a rule de facto and would allow Swift to bootstrap Staley’s breach-of-contract action into the Iowa courts through the filing of its action for recovery of amounts retained by Staley and for indemnity against a third-party guarantor. We do not believe that the policy of avoiding duplicative litigation requires this result. Swift may, if it chooses, assert its claim for recovery of amounts retained by Staley in the Illinois courts, and if it does not successfully defend Staley’s breach-of-contract action, it may seek indemnity from the third-party guarantor in Iowa or any appropriate forum. Significantly, resolution of Staley’s breach-of-contract action could moot or facilitate resolution of the questions of Swift’s right to indemnity and its right to recovery of amounts retained by Staley.

The propriety of staying the Illinois action has also been discussed by the parties, but we feel that a stay would also be inappropriate. A stay would, again, require Staley to seek its relief by way of counterclaim in the Iowa action, or, alternatively, to await the expiration or termination of the stay before proceeding upon its complaint in Illinois. We have already expressed our belief that the first of these alternatives is inadequate, and we find that the latter course is likewise unacceptable. We do not believe that a resident corporation’s right to its day in court should await resolution of sister-State litigation where, as here, plaintiff’s filing of its complaint does not evidence an intent to harass or gain undue influence over defendant and where, as here, the possibility of completely resolving this controversy in Illinois is greater (Annot., 19 A.L.R.2d 301, 309-12, 317 (1951) (factors in deciding whether to stay a later filed action are comity; prevention of multiplicity, vexation and harassment; likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum)). As the appellate court capably noted in the Continental Grain case, the legislature did not intend “that the statute should be made so dependent on either the possible actions of a defendant or the laws of some other jurisdiction.” Continental Grain Co. v. FMC Corp. (1975), 27 Ill. App. 3d 819, 824.

Prior cases of this court relied upon by Swift do not require a different application of section 48(1)(c) to the facts here. People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, and People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, involved the pendency of two actions in different counties in Illinois, and the court’s concern in those cases was for the orderly administration of justice within the same jurisdiction, Illinois. Such a matter is one over which the court understandably could and should exercise greater control and guidance, as opposed to a situation such as that presented here, in which a legitimate and substantial relationship of this litigation to Illinois has been demonstrated and in which the other action pending is in the courts of a sister State, over which this court has no say. In Lehman, for example, it is said that the “orderly administration of justice does not permit one court of this state to ignore *** another court of this state.” (Emphasis added.) (34 Ill. 2d 286, 292.) A fair reading of Gitchoff indicates that the court’s concern was similarly limited to intrastate conflicts between courts. It is there said:

“We need not here resolve the opposing arguments of the parties on the question whether the Madison counterclaim and the Macon action were ‘pending in the same court’ so as to authorize their consolidation by the Macon County judge pursuant to section 51 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 51). It is entirely clear that the pendency before different judges of separate suits involving identical parties and issues is incompatible with the orderly and efficient administration of justice. It is equally clear that irrespective of the propriety of the Macon County order consolidating the proceedings, the refusal of the Madison County court to abide by that order was improper. One circuit judge may not review or disregard the orders of another circuit judge in the judicial system of this State (People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein (1974), 61 Ill. 2d 229), and such action can only serve to diminish respect for and public confidence in our judiciary ([People ex rel.) East Side Levee [& Sanitary District v. Madison County Levee & Sanitary District (1973)], 54 Ill. 2d 442, 445).
Section 16 of article VI of the 1970 Constitution vests ‘General administrative and supervisory authority over all courts’ of this State in this court. In the exercise of that authority we have heretofore ordered the correction of patently erroneous action by trial judges. People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein [(1974)], 61 Ill. 2d 229; People ex rel. Bowman v. Woodward [(1974)], 61 Ill. 2d 231.” (People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 257.)

Read in context, it is readily apparent that the court’s reference to “the pendency before different judges of separate suits” was an expression of concern over the workings of the judicial system within Illinois.

Skolnick v. Martin (1964), 32 Ill. 2d 55, also relied upon by Swift, is likewise not in point, since that case involved the filing of the same cause of action by the same plaintiff in Federal and Illinois courts. The court’s references to a “right” of dismissal and to “repetitious and burdensome” litigation in the courts of other jurisdictions (32 Ill. 2d 55, 59-60) therefore do not carry the same meaning here where there is no element of vexation apparent from the multiple filing and prosecution of the same action by the same party.

In summary, we hold that section 48(1)(c) does not bar Staley’s action in the Illinois courts. The judgment of the appellate court is affirmed insofar as it held that section 48(1)(c) does not bar Staley’s action, and its judgment is reversed insofar as it remanded the cause to the circuit court for further proceedings. The judgment of the circuit court is reversed.

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

Dissenting Opinion Upon Denial of Rehearing

MR. JUSTICE UNDERWOOD,

dissenting:

With some misgivings I had originally joined in the court’s opinion. The undenied representations now made in the petition for rehearing and responsive documents have, however, persuaded me that the court has erred in this unusual situation by permitting the Illinois proceedings to continue. I agree with the holding that filing of the Iowa complaint approximately one hour prior to the filing of the Illinois complant does ntit ipso facto require dismissal of the latter. That is not to say, however, that the priority in filing is totally irrelevant in evaluating the forum non conveniens posture of the Illinois litigation. I agree, too, that Swift’s action in asserting seriatim its bases for dismissal does not bespeak a serious effort to expedite the ultimate resolution of this case. Unfortunately, those observations do little to assist in solving the problem which arose when this court held the circuit court erred in believing itself without discretion to deny Swift’s section 48(1)(c) motion, and then, rather than remanding to that court for further hearings, proceeded to hold that the Illinois action could be maintained. As a consequence of deciding the matter here without remandment, no new evidence was taken as to current developments. Thus, this court’s original opinion was predicated upon a record reflecting the status of the litigation in 1977 when Swift’s original forum non conveniens motion to dismiss had been denied. No additional evidence had been admitted at the trial court hearing on Swift’s later section 48(1)(c) motion, since the trial court felt the priority of the filing of the Iowa action compelled dismissal of Staley’s Illinois complaint.

We are now, for the first time, informed by the petition for rehearing and response thereto of substantial changes which have occurred in the status of the Iowa proceedings since the dismissal of the Illinois litigation by the Macon County circuit court from which this appeal was taken. This court’s opinion relied to a significant extent upon Staley’s original argument that an Illinois resident corporation should not be compelled to seek the relief it desired by way of a counterclaim in the Iowa action initiated by Swift. We are now informed that, some 6 days following the oral argument of this case before us, Staley filed in the Iowa litigation a counterclaim presenting virtually the identical claims made in its Illinois complaint; in addition, that counterclaim contains a second count, not present in the Illinois complaint, alleging a breach of contract claim in connection with Swift’s sale of an Indiana soybean-processing plant to Staley under the same agreement governing sale of the Des Moines plant. As a result of the filing by Staley of its Iowa counterclaim, Swift has now filed in the Iowa proceedings indemnity actions against certain corporate contractors who are allegedly liable to Swift for the plant defects complained of by Staley in its counterclaim against Swift. Two of the defendants in the indemnity actions are Ohio corporations over which there is apparently no basis for acquiring jurisdiction in Illinois. Iowa law permits a simultaneous trial of Swift’s complaint, Staley’s counterclaim and the indemnity actions.

Also relevant for consideration is the fact that on June 12, 1980, Staley’s motion to dismiss the Iowa proceedings on forum non conveniens grounds was denied by the Iowa district court in an order which stated in part:

“ [T] his is an Iowa-based construction case in which the bulk of witnesses, documents, and the structures (comprising a soybean processing plant) are located in the Des Moines area.”

The court further found:

“Although Staley asserts that some of its high-level executives are located in Decatur, Illinois, the key Staley operating and engineering personnel with responsibility for the operation of the Des Moines plant are located in Iowa (e.g., H. S. Chittick, Staley’s former plant superintendent, Mr. R. Rypkema, Staley’s former plant manager, Mr. E. D. McConnell, Staley’s general foreman, Mr. R. L. Bucklin and Mr. L. A. Williams, Jr., Staley’s general operating foremen). Moreover, the contractor primarily responsible for construction of the plant, A. N. Neumann & Brothers, Inc., is incorporated in Iowa and located in Des Moines; Neumann’s personnel reside in Iowa; almost all of the subcontractors who worked on the construction of the plant are incorporated and located in Iowa; and almost all of their personnel reside in Iowa. All of these witnesses have critical, firsthand knowledge of the construction and operation of the plant.
Also significant is the fact that Staley’s documents are kept at the Des Moines plant. Tens of thousands of documents have already been produced in this case at the Des Moines plant.”

Additionally, it is represented by Swift and not denied by Staley that, since the date of oral argument before us, Staley has produced at the Des Moines plant more than half a million documents in response to discovery requests, and that these documents reveal that some 20 Staley supervisory personnel conducted an investigation of operations at the soybean-processing plant in Des Moines in early 1979 and will be important witnesses at trial. These witnesses, it is said, are all located in Des Moines. The Iowa court’s denial of Staley’s motion to dismiss on forum non conveniens grounds was obviously based on a consideration of far more nearly current facts than was this court’s opinion.

Of course this court can ignore these new developments and our earlier holdings and insist that an Illinois resident corporation is entitled to assert its rights in the courts of our State regardless of the extraordinary inconvenience, cost and inefficiency involved in doing so. But, to me, that course smacks of provincialism. Pursuing that avenue will result in simultaneous litigation in the district court of Iowa and the circuit court of Illinois of what is essentially the same cause of action. Substantial duplication of discovery, depositions, lawyers’ fees, costs and testimony will occur. In all likelihood it will be necessary that Illinois witnesses travel to Iowa and Iowa witnesses to Illinois. The added expense and inconvenience to the parties will obviously be substantial. But, of at least equal importance is the impact of these proceedings upon our judicial system. This is highly complex multiparty litigation involving many millions of dollars. Its resolution will require large amounts of lawyer, witness and judicial time and effort. To unnecessarily duplicate that burden and impose it upon both the Iowa and Illinois judicial systems is, in my judgment, both unnecessary and undesirable. This is particularly so when it is remembered that there is included in the Iowa proceedings the indemnity actions against the Ohio contractors, jurisdiction over whom cannot even be obtained in Illinois. It is apparent that only in the Iowa court can all of the claims be completely resolved.

The majority dismisses this court’s earlier decision in Skolnick v. Martin (1964), 32 Ill. 2d 55, as not in point because the litigation there had been filed in both Federal and State courts by the same plaintiff and therefore involved an element of vexation not present here. Skolnick, however, did not speak in terms of “vexation.” After first indicating it was sufficient to come within section 48(1)(c) that both suits arose from the same “cause” rather than involving the same “cause of action” this court went on to state:

“The statute here authorizes dismissal where another action is pending without distinguishing between actions depending in another jurisdiction. Had it been intended to restrict the authority to dismiss to situations where the other cause of action was pending in our own jurisdiction, it would have been a simple matter to do so. Furthermore, the Civil Practice Act was designed to eliminate the formalized rules of common-law pleading and to provide a procedure whereby substantive rights could be determined with a minimum of delay, technicality and expense. (Scott v. Freeport Motor Casualty Co. 392 Ill. 332.) Indeed, it is the express direction of section 4 that the act shall be liberally construed to the end that controversies may be speedily and finally determined. (Ill. Rev. Stat. 1961, chap. 110, par. 4.) Certainly the elimination of repetitious suits and the relief of courts and litigants alike from the unnecessary burden of trying the .same issues pending in another action are consistent with the purpose and spirit of the Civil Practice Act, and it can hardly be said that actions for the same cause filed in the Federal courts or those of our sister States are less repetitious or burdensome than those filed within our own jurisdiction.” (Emphasis added.) (32 Ill. 2d 55, 59-60.)

In my judgment the theme of Skolnick is difficult to reconcile with the result in this case.

This court’s concern for the efficient and orderly administration of justice and fairness to the litigants has been expressed in numerous other instances. (Horn v. Rincker (1981), 84 Ill. 2d 139; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90; Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 51; People ex rel. Phillips Petroleum v. Gitchoff (1976), 65 Ill. 2d 249; People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286.) If dismissal under section 48(1)(c) is to be a discretionary matter governed largely by forum non conveniens considerations, a sound exercise of that discretion would dictate a stay or dismissal of the Illinois litigation.

Reassessing the validity of our original opinion in light of the apparently changed circumstances which were not previously known persuades me that the circuit court’s dismissal of the Illinois action should be sustained. At the very least it would seem to me our opinion should be vacated and the cause remanded for a hearing at which evidence of these changed circumstances could be presented. If that evidence established that the present circumstances are as represented in the pleadings pertaining to rehearing, the Illinois litigation should be dismissed.

MR. JUSTICE MORAN, joins in this dissent.


author: MR. JUSTICE MORAN

text:
    (No. 53226.
    AZZARELLI CONSTRUCTION COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Harlen Tinsley, Appellee).

      Opinion filed March 18, 1981.

      Francis J. Lynch, of Braun, Lynch, Smith & Strobel, Ltd., of Chicago, for appellant.
    Perz & McGuire, of Chicago (Frank M. Perz and James M. Ridge, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In this workmen’s compensation case, the arbitrator awarded plaintiff, Harlen Tinsley, 26 weeks of compensation for total temporary disability and 200 weeks of compensation for partial permanent disability, at $172.67 per week. The arbitrator also awarded plaintiff $5,893.65 for necessary medical and hospital expenses. On review, the Industrial Commission awarded plaintiff $172.67 per week for life for permanent total disability and increased his award for medical expenses by $32,388. (See Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) The circuit court of Kankakee County found that the Commission’s findings were not against the manifest weight of the evidence and confirmed the Commission’s decision.

The defendant contends that plaintiff failed to establish (1) that his permanent total disability is attributable to a work-induced myocardial infarction rather than to his underlying condition of atherosclerosis and (2) that his medical expenses accompanying the bypass surgery were caused by the infarction, thereby rendering the Commission’s awards to be against the manifest weight of the evidence.

Prior to November 14, 1975, plaintiff had atherosclerosis. On this date, he and his foreman lifted a 250-pound water pump from a vehicle to a ditch that contained ice. Plaintiff then carried a gasoline can and two 100-pound hoses to the ditch, pulled a hose through a culvert, and jerked the water pump into position. At this point, he experienced pain in his chest which traveled to his back, left shoulder and left hand. He started the water pump, then became very ill and experienced severe chest pain. Plaintiff was taken to the hospital, where he was diagnosed as having suffered a myocardial infarction, which was described as the destruction of a portion of the heart muscle resulting from an insufficient supply of blood to that organ. Plaintiff remained in the hospital 23 days, then returned home, where he did not improve. In February 1976 he spent a total of 22 days in two different hospitals. In March he returned to one of the hospitals, where he underwent open-heart surgery. In August 1976, while assisting in removing a barrel from a crawl space under the house of his son-in-law, plaintiff experienced a recurrence of the prior severe pain. Subsequent to this incident, plaintiff frequently suffered either constant or intermittent pain. He was hospitalized five times between the work accident and the barrel incident, and nine times thereafter for cardiovascular problems. Plaintiff has neither worked nor sought work following the infarction.

The defendant employer, Azzarelli Construction Company, concedes that, as a result of the accident, plaintiff sustained a myocardial infarction which produced some permanent disability. Defendant also concedes that the plaintiff is entitled to compensation for a reasonable period of time for total temporary disability, for medical and hospital expenses necessary for the care and treatment of the myocardial infarction, and to some compensation for permanent injury due to the myocardial infarction. Defendant argues, however, that its expert witness, Dr. William Buckingham, testified that plaintiff’s permanent total disability is a result of plaintiff’s underlying condition of coronary atherosclerosis, aggravated by excessive smoking and by diet, rather than a result of the accident and subsequent infarction. Defendant also argues that plaintiff’s bypass surgery was required by the atherosclerosis, and that the medical expenses for and following the surgery are not its responsibility. Defendant contends that this evidence is unrebutted because plaintiff’s expert, Dr. Nathaniel Greenberg, did not address the relationship between the work-induced infarction and plaintiff’s permanent disability, nor between the infarction and the bypass surgery.

We disagree. It is true that the evidence showed that but for the atherosclerosis the infarction and its aftermath of illness would not have occurred. But Dr. Buckingham’s testimony that the plaintiff’s present condition is not related to the myocardial infarction was disputed by plaintiff’s expert. Dr. Greenberg testified that the infarction was a permanent condition, as it is the destruction of a portion of the heart muscle. He also testified that the disability resulting from the infarction had not ceased, and he repeatedly denied that the cause of the present disability was the coronary artery disease rather than the myocardial infarction. As to the expenses for the bypass surgery, Dr. Buckingham’s conclusion that the surgery was unrelated to the infarction was also disputed by Dr. Greenberg. He stated, “[There] probably would have [been] no need for a bypass surgery if he [plaintiff] had not had a myocardial infarction in the first place.” It is apparent that Dr. Green-berg believed the myocardial infarction contributed to plaintiff’s disability as well as to the coronary bypass surgery.

From the conflicting evidence of the opposing experts, the Commission evidently concluded that a causal connection existed between the accident-induced myocardial infarction and plaintiff’s permanent total disability, as well as between the infarction and the coronary bypass surgery. The question of whether a claimant’s disability is attributable to a degenerative condition or, because of an accident, to an aggravation of a preexisting condition, is a question of fact to be decided by the Industrial Commission. (Ross v. Industrial Com. (1980), 79 Ill. 2d 258, 261; International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1, 3-4 (a case with a very similar factual situation); Proctor Community Hospital v. Industrial Com. (1969), 41 Ill. 2d 537, 542.) The claimant’s injury need not be the sole factor that aggravates a preexisting condition, so long as it is a factor that contributes to the disability. (Pulliam Masonry v. Industrial Com. (1979), 77 Ill. 2d 469, 472; International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1, 3; Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244, 249; International Harvester Co. v. Industrial Com. (1970), 46 Ill. 2d 238, 246; Proctor Community Hospital v. Industrial Com. (1969), 41 Ill. 2d 537, 542.) If the injury is a contributing factor, compensation will be allowed even if natural degenerative change or other factors, such as smoking, contributed to claimant’s disability. International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1,4.

We have often stated that the Industrial Commission shall determine the nature and extent of an employee’s disability, drawing reasonable inferences from, among other things, medical evidence. The Commission’s determination will be upheld, particularly in the presence of conflicting medical opinions, unless it is contrary to the manifest weight of the evidence. (Morgan v. Industrial Com. (1980), 82 Ill. 2d 524, 527; Inland Steel Coal Co. v. Industrial Com. (1980), 81 Ill. 2d 61, 65;International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1, 4.) There is no evidence that prior to November 14, 1975, plaintiff experienced any difficulty in performing manual labor. Since November 14, 1975, plaintiff has been unable to work. Notwithstanding the existence of the coronary atherosclerosis, plaintiff’s disability began at and continued from the time of the employment-induced infarction. The Commission could reasonably have adopted Dr. Greenberg’s conclusion that the original accident and resulting infarction were contributing factors in plaintiff’s permanent total disability and in the open-heart surgery. Accordingly, in our judgment, the Commission’s findings were not against the manifest weight of the evidence.

For the above-stated reasons, the judgment of the circuit court of Kankakee County is affirmed.

Judgment affirmed.