author:
MR. JUSTICE MORAN MR. JUSTICE UNDERWOOD,
      MR. JUSTICE RYAN, MR. CHIEF JUSTICE GOLDENHERSH,

text:
    (No. 50499.
    THE COUNTY OF COOK, Appellant, v. JOHN SEXTON CONTRACTORS COMPANY et al., Appellees.-(The Pollution Control Board et al., Appellants.)

      Opinion filed April 18, 1979.

    Rehearing denied May 30, 1979.

      UNDERWOOD, J., concurring.
    RYAN, J., specially concurring.
    GOLDENHERSH, C.J., and CLARK, J., dissenting.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and William E. Kenny, Assistant State’s Attorney, of counsel), for appellant County of Cook.
    William J. Scott, Attorney General, of Springfield (George Wm. Wolff, Assistant Attorney General, and Dennis R. Fields, Special Assistant Attorney General, of Chicago, of counsel), for appellant Pollution Control Board.
    Marvin J. Glink and John B. Murphey, of Ancel, Glink, Diamond & Murphy, P.C., of Chicago, and Leland H. Ryson, of Tinley Park, for appellant Village of Richton Park.
    Kirkland & Ellis, of Chicago (Frank L. Winter, of counsel), for appellees John Sexton Contractors Co. et al.

    Kevin M. Forde, Ltd. and Richard J. Prendergast, of Chicago, for amicus curiae The Illinois Landfill Operators Association et al.

   MR. JUSTICE MORAN

delivered the opinion of the court:

This litigation arose out of the efforts of John Sexton Contractors Company (Sexton) to locate and operate a sanitary landfill on an 85-acre tract of land in an unincorporated portion of Cook. County (County). On January 19, 1976, the County comprehensively amended its zoning ordinance pursuant to its home rule power under the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 6). Prior to the amendment, the subject property had been zoned R — 3, single-family district. Under the amendment, the subject property was zoned R — 4, single-family district. The present ordinance allows sanitary landfill sites as a special use in four districts zoned for industry and in two districts zoned for open land.

The Environmental Protection Agency (Agency) issued a final developmental permit to Sexton on September 13, 1976. (The Agency previously had issued a permit, but then requested additional information from Sexton.) The County subsequently brought an action in the circuit court against Sexton and the Agency, seeking to enjoin further development and operation of the landfill until Sexton complied with the County’s zoning laws. Sexton counterclaimed to stop the County’s attempt to subject the landfill to county zoning laws, alleging that the Environmental Protection Act (Act) (Ill. Rev. Stat. 1977, ch. 111½, par. 1001 et seq.) applied to the exclusion of the County’s zoning laws.

Property used for residential purposes is located close to the subject landfill site and within the corporate limits of the village of Richton Park (Village). The Village filed a complaint with the Pollution Control Board (Board) pursuant to Rule 503(a) of the Board’s Procedural Rules and Rule 205(j) of the Board’s Solid Waste Rules and Regulations, which ostensibly empower the Board to review the actions of the Agency in the granting of permits. Sexton moved to dismiss the Village’s complaint on the ground that the Board was without authority to review the Agency’s decision in the granting of permits. The Board denied Sexton’s motion.

Following this denial, Sexton amended its counterclaim to add the Board and the Village as counter-defendants and to enjoin the Board proceedings. Although the record is not clear, it seems Sexton further amended its counterclaim to add the village of Matteson and Cook County school districts 159 and 227 as additional counter-defendants. The Board moved to dismiss Sexton’s amendments on the ground that the circuit court lacked jurisdiction to rule on the propriety of the proceedings before the Board. Meanwhile, Sexton had developed the landfill site, the Agency issued Sexton a permit to operate the landfill, and Sexton began operations. The court, after determining it had jurisdiction over the matter, denied the Board’s motion to dismiss.

After deciding it had jurisdiction, the circuit court held Board Rules 503(a) and 205(j) invalid, on the ground that the Board was not delegated the authority to review the Agency’s decision in the granting of permits. Consequently, the court enjoined further Board proceedings in the matter. The court further ruled that the Act preempted any regulatory authority by home rule units over the location of sanitary landfills and enjoined the County from interfering with Sexton’s sanitary landfill operation. The County, the Board, and the Village separately appealed from the trial court’s judgments. The case was transferred to this court pursuant to Supreme Court Rule 302(b) (58 Ill. 2d R. 302(b)).

The appeals taken by the Board and the Village both present the following questions: (1) Did the circuit court have jurisdiction to determine the validity of the Board rules? and (2) Are Board Rules 503(a) and 205(j) valid? Both of these questions have been decided adversely to the Board and the Village by this court’s recent decision in Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541. Accordingly, we hold that the circuit court had jurisdiction to, and correctly did, decide that Board Rules 503(a) and 205(j) are invalid. Proceedings before the Board therefore were properly enjoined.

The appeal of the County presents the remaining precise question: Where the Agency has issued a permit for the operation of a privately owned sanitary landfill, may the County, a home rule unit, require the landfill owner’s conformance to the County’s zoning ordinance?

Prior to July 1, 1970, anyone desirous of operating a sanitary landfill within the unincorporated area of a county was required to locate it upon land zoned for such purposes (Ill. Rev. Stat. 1969, ch. 34, pars. 3151 to 3162), and also to register the site with the Illinois Department of Public Health (Ill. Rev. Stat. 1969, ch. 111½, pars. 471 to 476), whose duties included the formulation of minimum standards for the operation of such facility.

On July 1, 1970, the act here involved became effective and repealed the statute requiring registration of sanitary landfills with the Illinois Department of Public Health (Ill. Rev. Stat. 1971, ch. 111½, par. 1050). In the Act, the General Assembly expressed its concern over environmental damage by declaring the need for a statewide program to cope with environmental problems, including the disposal of solid waste. (Ill. Rev. Stat. 1977, ch. 111½, pars. 1002(a)(ii), 1002(a)(iii).) The Act thus represents a unified program of environmental regulation. Sections 20 to 22 (Ill. Rev. Stat. 1977, ch. 111½, pars. 1020 to 1022) specifically address solid waste disposal, and include the proscription against refuse-disposal operations without an Agency permit (Ill. Rev. Stat. 1977, ch. 111½, par. 1021(e)). Following adoption of the Act, the question of the power of a local governmental unit to subject a sanitary landfill to local zoning ordinances was first addressed by this court in O’Connor v. City of Rockford (1972), 52 Ill. 2d 360. That action arose when the city of Rockford, after registering with the Elinois Department of Public Health, proposed to maintain and operate a sanitary landfill in an unincorporated area of Winnebago County. The county sought to require the city’s compliance with the county zoning laws. After discussing various provisions of the Act, this court held that the city need only obtain an Agency permit. The court felt that to condition the city’s use of the proposed site as a sanitary landfill on its compliance with county zoning laws would contravene the “clearly expressed legislative intent that such operations be conducted only upon issuance of a permit from the Environmental Protection Agency.” (52 Ill. 2d 360, 367.) On its face, O’Connor thus stands for the proposition that the Act operates to the exclusion of regulation by local governmental bodies. It must be noted, however, that the local governmental body (Winnebago County) involved in O’Connor was a non-home-rule unit.

The next confrontation between the Act and a local unit of government involved a home rule unit, the city of Chicago. In City of Chicago v. Pollution Control Board (1974), 59 Ill. 2d 484, the Agency sought to subject the city to the provisions of the Act in the city’s operation of a municipal sanitary landfill and three refuse incinerators, after the city had been granted permits by the Chicago Department of Environmental Control. There, the court concluded that a local governmental unit may legislate concurrently with the State on environmental control. Although the local unit of government was a home rule unit, the court did not expressly confine its. holding to home rule units, just as the O’Connor court did not confine its holding to non-home-rule units.

Following City of Chicago, another case arose which involved the authority of a local governmental unit over sanitary landfills. In Carlson v. Village of Worth (1975), 62 Ill. 2d 406, plaintiff had obtained an Agency permit to install and operate a sanitary landfill within the village of Worth, a non-home-rule unit. The village promptly enacted an ordinance making it unlawful to operate the landfill without a permit from the village. The village permit, in turn, required compliance with the village zoning ordinance. This court held that the Act preempted local regulation, reiterating the policies of the Act as expressed by the legislature and set forth by O’Connor (62 Ill. 2d 406, 408-09). As in O’Connor, the court did not confine its holding to non-home-rule units. Consequently, rather than merely limiting City of Chicago to home rule units, the Carlson court, viewing City of Chicago as inconsistent with O’Connor, purported to reduce the City of Chicago decision to dictum. (62 Ill. 2d 406, 409.) The decision in Carlson, therefore, although concerned with non-home-rule units only, was viewed as casting doubt on the continued vitality of City of Chicago even as to home rule units. See Carlson v. Village of Worth (1976), 62 Ill. 2d 406, 411, 424-26 (Ryan, J., dissenting; Underwood, J., and Ward, C.J., dissenting from supplemental opinion on denial of rehearing); Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill. 2d 256, 260 (stating that Carbon precludes reliance on City of Chicago as precedent).

After O’Connor and Carbon, it is clear that the Act operates to exclude non-home-rule units from the regulation of sanitary landfills. This conclusion, however, is not incompatible with the result reached in City of Chicago, which applied to home rule units. An assessment of the relationship between State legislation and regulations enacted by a local governmental unit requires a different approach when the local unit is a home rule unit. Under the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 6), effective July 1, 1971, many local units of government became, or were given the power to become, home rule units, which were granted the following power:

“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” (Ill. Const. 1970, art. VII, sec. 6(a).)

The Constitution also provides that “[p] owers and functions of home rule units shall be construed liberally.” (Ill. Const. 1970, art. VII, sec. 6(m).) As to the State’s relationship with home rule units, the State may exercise exclusively any power or function of a home rule unit except for taxing or certain taxing-type powers. (Ill. Const. 1970, art. VII, sec. 6(h).) However, section 6(i) of article VII provides:

“Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, sec. 6(i).

In deciding whether a home rule unit’s zoning restrictions are applicable to sanitary landfills, we must first determine if, under the 1970 Constitution, zoning for sanitary landfills is a home rule power and a function “pertaining to its government and affairs.” If so, we must decide whether the legislature, through enactment of the Act, has (1) “specifically” limited local exercise, or (2) “specifically” declared the State’s exercise to be exclusive, thereby totally preempting a home rule unit’s exercise of its constitutional power. If the legislature has not taken such “specific” action, we then must determine the proper relationship between the local zoning ordinance and the provisions of the Act.

The terms of the grant of home rule power are broad and imprecise, leaving to this court the duty to interpret whether any power exercised by a home rule unit is within the grant of section 6(a). (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 539-40.) The difficulty in determining the extent of home rule power arises because many matters are of both local and regional or statewide concern. A prime example is environmental regulation. Few matters would seem to be of more local concern than controlling local sources of pollution. Yet, many areas of environmental regulation are also of regional or statewide concern, as many types of pollution arid pollution-related matters transcend local boundaries. The problem is to decide which environmental matters are sufficiently local in character so as to be subject to the home rule power. It must be remembered that finding a matter to be within the home rule power does not preclude regulation or control by the State. The General Assembly may remove or limit most home rule powers by a three-fifths majority vote (Ill. Const. 1970, art. VII, sec. 6(g)), or may specifically supercede, either in part or in total, most home rule powers through its own legislation covering the particular matter (Ill. Const. 1970, art. VII, secs. 6(h), 6(i)). Absent such action by the General Assembly, home rule units may, concurrently with the State, exercise and perform any home rule powers. Ill. Const. 1970, art. VII, sec. 6(i).

Activities and matters that are potential sources of pollution, properly subject to environmental regulation, include the treatment and disposal of sewage and solid waste. In Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill. 2d 256, this court considered whether a municipality’s home rule power extends to regulation, in the form of a permit requirement, of a regional sewage-treatment plant. After the sanitary district obtained a permit from the Agency to construct a sewage-treatment plant within the city of Des Plaines, the city, a home rule unit, sought to force compliance with its own permit requirements. This court held that application of the city’s ordinance to the plant does not pertain to its government and affairs. In so ruling, the court emphasized that the regional plant was designed to serve several home rule municipalities. “Our fundamental difficulty is that to permit a regional district to be regulated by a part of that region is incompatible with the purpose for which it was created.” (63 Ill. 2d 256, 261.) Thus, although the plant, a potential source of pollution, was to be located entirely within the city of Des Plaines, and any environmental problems would have their greatest impact at the source, the court felt that local regulation would interfere unduly with the greater interest of the regional district.

In our opinion, the holding in Metropolitan Sanitary District should not be extended to the instant set of facts. The court there did not invalidate the local ordinance; it merely prohibited its application to the sanitary district’s regional plant. (63 Ill. 2d 256, 260.) The situation here is distinguishable. While Sexton admittedly contemplates use of the landfill by surrounding communities, this is not the case of a regional governmental district seeking to create a facility to serve a specific region, with a part of that region attempting to regulate the facility. Thus, the ‘fundamental difficulty” that this court perceived in Metropolitan Sanitary District does not exist here.

Sexton emphasizes that the Act established a statewide program of environmental regulation. The existence of the Act, however, is not determinative of whether regulation of sanitary landfills is within the home rule power. As stated, the Constitution specifically provides the legislature with the ability to deny, limit, or exclude home rule units from exercising most home rule powers. (Ill. Const. 1970, art. VII, secs. 6(g) to 6(i).) The late Professor David C. Baum, counsel to the Committee on Local Government, asserted that, unless the legislature undertakes its supervision powers according to the constitutionally prescribed methods, “home rule units are supposed to be free to carry on activities that relate to their communities even if the state also is interested and is active in the area.” Baum, A Tentative Survey of Illinois Home Rule (Part 1): Powers and Limitations, 1972 U. Ill. L.F. 137, 155.

We do not believe that it was the intent of the framers of the 1970 Constitution to exclude regulation of solid waste disposal from those matters that pertain to the government and affairs of home rule units. The Report of the Local Government Committee to the constitutional convention evidences the intent to include such regulation within the home rule power:

“The fundamental reason for favoring home rule over the existing system of legislative supremacy is this: Local governments must be authorized to exercise broad powers and to undertake creative and extensive projects if they are to contribute effectively to solving the immense problems that have been created by the increasing urbanization of our society.” (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1605.)

Perusal of the transcripts of the constitutional debates regarding home rule indicates a similar intent on the part of the delegates. (See 4 Proceedings 3040, 3049, 3055, 3065, 3094, 3112, 3119-20.) Furthermore, this court, in Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166, acknowledged that “the constitution conferred substantial powers upon home-rule units subject only to those restrictions imposed or authorized therein.” We adhere, therefore, to that portion of the decision in City of Chicago v. Pollution Control Board (1974), 59 Ill. 2d 484, which held, at least implicitly, that regulation of sanitary landfills is within the home rule power under section 6(a) of article VII of the 1970 Constitution.

Our determination, that regulation of sanitary landfills by the County through its zoning restrictions is within its home rule powers, is buttressed by the history of local regulation of such matters. The traditional zoning power of counties (see Ill. Rev. Stat. 1977, ch. 34, par. 3151 et seq.), the history of local zoning restriction of intensive land uses (see Dube v. City of Chicago (1955), 7 Ill. 2d 313), and this court’s recognition of local concern over garbage disposal (see Montgomery v. City of Galva (1969), 41 Ill. 2d 562, 564; Strub v. Village of Deerfield (1960), 19 Ill. 2d 401, 404; Consumers Co. v. City of Chicago (1924), 313 Ill. 408, 413-14) point to the conclusion that the County’s zoning restrictions regarding sanitary landfills pertain to its government and affairs.

Sexton argues that this court’s decision in City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill. 2d 1, requires us to hold that a home rule unit may not regulate sanitary landfills. In North Western Ry., which was decided after Metropolitan Sanitary District, the city of Des Plaines charged the defendant with violating the city’s noise-control ordinance, based on the noise emanating from the defendant’s trains as they sat idling overnight in a railyard in the city. The defendant was convicted under the ordinance and the appellate court affirmed. This court reversed. A careful reading of North Western Ry. discloses that the authority sought to be exercised under the noise-control ordinance, much like the authority sought to be exercised under the health ordinance at issue in Metropolitan Sanitary District, exceeded the city of Des Plaines’ home rule power granted under section 6(a) of article VII (Ill. Const. 1970, art. VII, sec. 6(a)). In North Western Ry., although the immediate facts dealt with noise emission within the city, the dty admitted that the ordinance was intended to control emissions originating beyond its boundaries. In Metropolitan Sanitary District, the city attempted to impose its ordinance on six other municipalities which comprised the sanitary district. In each instance, the city was precluded from imposing its home rule power upon other local units of government. In the instant case, the County’s zoning ordinance applies only to unincorporated land within the County’s own boundaries.

Having determined that zoning of sanitary landfills is within the home rule power, we must still decide whether the County can subject Sexton to its zoning restrictions after Sexton has received a permit for its landfill from the Agency. Sexton does not contend, and the record does not disclose, that the legislature has denied or limited by a three-fifths vote under section 6(g) of the Constitution the home rule power at issue here. This leaves the question whether, through the Act, the legislature has specifically excluded or limited, pursuant to sections 6(h) or 6(i), the home rule power. This court in City of Chicago v. Pollution Control Board (1974), 59 Ill. 2d 484, 489, held that the Act did not express the intent that the State should exclusively occupy the field, but that a home rule unit may legislate concurrently with the General Assembly on environmental control. Although Carlson v. Village of Worth (1975), 62 Ill. 2d 406, made it clear that the Act preempted the power of non-home-rule units to regulate sanitary landfills, that decision involved a non-home-rule unit and should not be read to overrule City of Chicago with respect to home rule units.

As noted earlier, the Act became effective on July 1, 1970. The 1970 Constitution, however, did not become effective until July 1, 1971. This court has consistently held that for legislation to restrict the home rule power, the statute, besides complying with the constitutional requirements, must have been enacted subsequent to the adoption of the Constitution. Furthermore, a home rule unit’s exercise of its power will supercede any conflicting pre-1970-Constitution legislation. (Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 18; Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 527; Paglini v. Police Board (1975), 61 Ill. 2d 233, 235; Mulligan v. Dunne (1975), 61 Ill. 2d 544, 550; Peters v. City of Springfield (1974), 57 Ill. 2d 142, 147; Clarke v. Village of Arlington Heights (1974), 57 Ill. 2d 50, 53-54; People ex rel. Hanrahan v. Beck (1973), 54 Ill. 2d 561, 565-66; Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166-67.) Because the Act antedated the effective date of the 1970 Constitution, home rule units, under the above-cited cases, retain the powers provided by section 6 of article VII. Ill. Const. 1970, art. VII, sec. 6.

In City of Chicago, however, this court modified the doctrine of home rule precedence in the area of environmental regulation because of the policy manifested in article XI of the Constitution, which states:

“The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. The General Assembly shall provide by law for the implementation and enforcement of this public policy.” (Ill. Const. 1970, art. XI, sec. 1.)

The court, after citing various excerpts from the General Government and Local Government Committees’ reports, found that the delegates to the convention intended that the General Assembly would provide leadership and uniform standards with regard to pollution control and then went on to state:

“We conclude therefore that a local governmental unit may legislate concurrently with the General Assembly on environmental control. However, as expressed by that portion of the constitutional proceedings referred to above, such legislation by a local governmental unit must conform with the minimum standards established by the legislature.” (59 Ill. 2d 484, 489.)

We modify a portion of the conclusion reached in City of Chicago by substituting the words “home rule” for the word “local,” and the word “uniform” for the word “minimum” in the above-quoted portion of that opinion. Under this modification, as applied to environmental pollution, home rule governmental units are limited to adopting only those uniform standards established by the Board pursuant to legislative authority. This comports with the intent of the delegates to the constitutional convention as expressed by the General Government Committee:

“It is essential to the cause [to preserve our environment] that the inter and intra governmental efforts complement one another, that there be a coordinated plan of action with uniform, standards.” (Emphasis added.) (6 Proceedings 700.)

A similar intent was expressed by the Local Government Committee in addressing the solution to the problem of fragmenting governmental power when it proposed that the State be permitted “to take over or directly control those aspects of government in metropolitan areas which do not lend themselves well to governance by a large number of local units.” (7 Proceedings 1615.) We conclude that the legislature has delegated solely to the Board the authority to adopt uniform statewide environmental standards, and that a home rule unit which passes a related ordinance, in the interest of local implementation and enforcement, must conform to those same standards.

In sum, while we adhere to this court’s decisions in O’Connor v. City of Rockford (1972), 52 Ill. 2d 360, and Carlson v. Village of Worth (1975), 62 Ill. 2d 406, as far as non-home-rule units are concerned, we are of the opinion that City of Chicago v. Pollution Control Board (1974), 59 Ill. 2d 484, as modified, represents the law with respect to home rule units.

Sexton argues that to require compliance with local zoning restrictions would disrupt the statewide concern expressed by the legislature and the need for regulation of environmental matters on a statewide basis. We are not so persuaded. The framers of the Constitution were cognizant of potential problems but, nevertheless, opted to give home rule units broad grants of power subject to legislative control. The Local Government Committee stated:

“As to the problem of fragmenting governmental power in metropolitan areas, we believe that the solution does not lie in denying suitable powers to local governments which only aggravates the problem of fragmentation, but rather in encouraging the use of powers in a cooperative manner by local entities in metropolitan areas ***.” (Emphasis added.) 7 Proceedings 1615.

As earlier concluded, the County, a home rule unit, may, under its “government and affairs ” authority, impose zoning restrictions. This power is not to be denied. The Act does not delegate zoning powers to the Agency or the Board but, in fact, limits such power. Section 22 of the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1022) empowers the Board to adopt regulations for the location of landfills but not to designate the actual site. Section 27(a) of the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1027(a)) restricts the Board by stating:

“In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses [and] zoning classifications ***.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 111½, par. 1027(a).

The power of the Board to set uniform, statewide environmental standards and the power of the County to zone property within its boundaries are therefore evidenced as distinct but concurrent powers that must be exercised cooperatively in the interest of environmental protection. To this end, the County, in zoning land for landfill sites, must adhere to the environmental regulations adopted by the Board, while the Agency, operating under the Board’s regulations, must comply with the County’s zoning ordinance when issuing permits for landfill sites. Thus, the authority granted the Board under the Act and the home rule authority granted to the County under the Constitution’s article VII, section 6, can be exercised in unison to accomplish the public policy expressed in article XI, section 1, of the 1970 Constitution.

We conclude that Sexton, who has complied with the regulations of the Board, must also comply with the zoning restrictions of the County.

For the foregoing reasons, the judgment of the circuit court is affirmed in part and reversed in part and the cause is remanded to that court with directions to enter an order in accordance with the views expressed herein.

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

MR. JUSTICE UNDERWOOD,

concurring:

I am not as certain as my colleagues that Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill. 2d 256, is so clearly distinguishable from this case. However, upon further consideration of the basic issue — whether and to what extent home rule units may legislate in environmental matters — I have concluded to join the opinion of the court.

Viewed against the background of the home rule issues reaching this court, the arguments of the late Professor David C. Baum, counsel to the constitutional convention’s Local Government Committee, are persuasive. He stated that “the question is not whether the ‘pertaining to . . .’ language should limit the home rule grant, but rather how extensive the limitation should be.” (Baum, A Tentative Survey of Illinois Home Rule (Part 1): Powers and Limitations, 1972 U. Ill. L.F. 137, 153, hereinafter referred to as Baum (Part I).) The more troubling question, to me, is the extent to which this court should, by its interpretation of the “pertaining to” language, determine the degree of limitation in view of the optional methods for doing so granted the legislature in sections 6(g) and (h). (Ill. Const. 1970, art. VII, secs. 6(g), (h).) Again, Professor Baum’s articulate arguments for the latter are persuasive.

“The difficulty with a preemption rule in Illinois is that the home rule section, section 6, was specifically designed to prevent invalidation of local ordinances from occurring in this manner by judicial interpretation. Sections 6(g) and (h) permit the legislature to limit or deny home rule powers by a three-fifths vote of each house, and to exclude home rule units from a subject area by specifically declaring that the state shall operate exclusively in that area. Apart from these two methods of legislative supervision, home rule units are supposed to be free to carry on activities that relate to their communities even if the state also is interested and is active in the area. This idea is expressed in section 6(i), which provides that ‘ [h] ome rule emits may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.’ To the extent that state regulation is held to invalidate local power under the ‘pertaining to . . .’ language of section 6(a), the purpose of section 6(i) is undermined and defeated.” (Emphasis in original.) Baum (Part I) at 154-55 (footnotes omitted).

Conceding that a flexible approach to the interpretation of section 6(a) had much to recommend it, Professor Baum continued:

“A flexible approach to the definition of those subjects that ‘pertain’ to the ‘government and affairs’ of home rule units might also help solve several difficult issues. *** Courts might subject home rule cities to the jurisdiction of the Pollution Control Board even though the General Assembly may fail to expressly require home rule units to comply with the board orders. Absent such a requirement passed pursuant to section 6(g) or 6(h), home rule cities might claim that pollution is their local concern, unless the courts rule that pollution is a matter of state concern outside of local ‘government and affairs.’ And finally, a flexible, court-determined definition of ‘government and affairs’ would be consistent with the treatment of home rule powers in other states.
But despite its many advantages, the flexible approach seems wrong. We should face squarely that section 6 grants broad powers to home rule units subject to restraints imposed primarily by the General Assembly either by a three-fifths vote or by a declaration of exclusive state jurisdiction under authority expressly reserved in sections 6(g) and 6(h). The language does not contemplate substantial restraint added by judicial interpretation; indeed, it was designed to make this interpretation difficult if not impossible. A judicial preemption doctrine based upon the existence of legislative regulation was specifically frowned upon.
The design of section 6 places great responsibility upon the legislature to ensure that home rule does not degenerate into provincialism which could injure the people of the state. This emphasis on legislative authority to limit home rule, plus the specification of ways in which the legislature must act to assert its authority, makes the Illinois home rule provision unique. Judicial limitations imposed on home rule in other states should not be very persuasive in Illinois because of our unique approach to the problem.
If the legislature does not perform its job, it is true that the people of the state may suffer. But that is, by and large, the fate mandated by section 6 of the Local Government Article. Certainly, the ‘pertaining to . . .’ language leaves some leeway for judicial intervention. But if the constitutional design is to be respected, the courts should step in to compensate for legislative inaction or oversight only in the clearest cases of oppression, injustice, or interference by local ordinances with vital state policies.” Baum (Part I) at 155-57 (footnotes omitted).

If we are to perform our duty to implement the constitutional design, responsibility for the intelligent control of home rule powers should, in the absence of substantially more compelling facts than are here present, be left where the Constitution placed it — with the General Assembly.

MR. JUSTICE RYAN,

specially concurring:

Although I agree with the result reached by the majority, I cannot agree with the dicta contained in the opinion concerning the lack of authority of non-home-rule units of local government to regulate sanitary landfills. This case involves only the question of the authority of a home rule unit to regulate the location of landfills through the use of zoning power. There is no need to discuss in this case what authority a non-home-rule unit has in this area. To me, it seems inappropriate to attempt to transfuse vitality by the use of dicta into Carlson v. Village of Worth (1975), 62 Ill. 2d 406, a case I view as one of questionable precedential value. If this court, which is now differently composed than when Village of Worth was decided, wishes to again consider the issues that were before the court in that case, it should do so when those issues are involved in a case before the court and are properly briefed and argued. For the reasons stated, and under the authority cited in my dissent in Village of Worth, and my dissent from the supplemental opinion on rehearing in that case, I believe that non-home-rule units have been granted authority to regulate the disposal of garbage and waste, and the location of landfills, and that the authority granted by statute has never been modified or rescinded.

MR. CHIEF JUSTICE GOLDENHERSH,

dissenting:

I dissent. To hold that a home rule unit may by its zoning ordinance nullify the decision of the Environmental Protection Agency concerning the location of a landfill effectively thwarts the declared legislative intent that those decisions be made in accordance with a unified statewide program for environmental protection. The General Assembly specifically found:

“(i) that environmental damage seriously endangers the public health and welfare ***;
(ii) that because environmental damage does not respect political boundaries, it is necessary to establish a unified state-wide program for environmental protection and to cooperate fully with other States and with the United States in protecting the environment;
(iii) that air, water, and other resource pollution, public water supply, solid waste disposal, noise, and other environmental problems are closely interrelated and must be dealt with as a unified whole in order to safeguard the environment.” 111. Rev. Stat. 1977, ch. 11114, pars. 1002(i), (ii), (iii).

In the implementation of its program the General Assembly drew a clear distinction between the powers of the Pollution Control Board applicable to particular pollution problems. In section 10 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1010) relevant to the control of air pollution and section 13 (Ill. Rev. Stat. 1977, ch. 111½, par. 1013), which relates to water pollution, the broad powers conferred upon the Board for the adoption of regulations do not specifically provide that it may promulgate standards for the location of those facilities. In contrast, section 17 (Ill. Rev. Stat. 1977, ch. 111½, par. 1017), concerning public water supply, and section 22 (Ill. Rev. Stat. 1977, ch. 111½, par. 1022), concerning land pollution and refuse disposal, specifically confer upon the Board the power to adopt regulations prescribing standards for the location of such sites and facilities. Further, section 39 of the Act contains a provision applicable only to refuse disposal facilities; upon receipt of a request for a permit the Agency is required to notify “the State’s Attorney and the Chairman of the County Board of the county in which the facility is located and each member of the General Assembly from the legislative district in which that facility is located and *** the clerk of each municipality any portion of which is within 3 miles of the facility.” (Ill. Rev. Stat. 1977, ch. 111½, par. 1039.) It should be further noted that the Seventy-Ninth General Assembly rejected the attempt to amend section 22 to provide:

“Nothing in this Act is a limit on the power of any unit of local government to pass and enforce zoning ordinances; provided, that no unit of local government is here granted power over any other unit of local government or school district or their contractors, whether within or without the boundaries of such other unit of local government or school district. To the extent that any of such powers are exercised by the Environmental Protection Agency or the Pollution Control Board and a unit of local government, such powers shall be exercised concurrently.” Amendment No. 1 to House Bill 3955, 79th Gen. Ass’y.

Nothing in any case decided by this court since the enactment of the Environmental Protection Act lends support to the majority’s holding that the control of landfills is a function pertaining to the government and affairs of a local unit of government. On the contrary, in Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill. 2d 256, the court specifically held that the city’s permit requirement did not extend to a regional sewage treatment plant and in City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill. 2d 1, we held that an ordinance dealing with noise emission exceeded the home rule powers of that municipality. The majority cites in support of “this court’s recognition of local concern over garbage disposal” (75 Ill. 2d at 511-12) the cases of Montgomery v. City of Galva (1969), 41 Ill. 2d 562, Strub v. Village of Deerfield (1960), 19 Ill. 2d 401, and Consumers Co. v. City of Chicago (1924), 313 Ill. 408. Although these cases are authority for the proposition that under its police power a city may regulate the collection and disposal of garbage, they do not support the conclusion that the location of a sanitary landfill pertains to the government and affairs of a local unit of government. It should be noted that the only legislation concerning the dumping of garbage (“An Act to prohibit open garbage dumps or sites,” approved August 26, 1963 (Ill. Rev. Stat. 1963, ch. 111½, par. 461 et seq.), repealed (Ill. Rev. Stat. 1977, ch. 111½, par. 1050)) specifically provided that it did not apply “to the sanitary land fill and incinerator methods or garbage disposal” (Ill. Rev. Stat. 1963, ch. 111½, par. 461).

By some convoluted reasoning the majority concludes that the following language from section 27(a) limits the power of the Board and the designation of sites for landfill. Section 27(a) in pertinent part provides:

“In promulgating regulations under this Act, the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quality, or receiving body of water, as the case may be, and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution. The generality of this grant of authority shall only be limited by the specifications of particular classes of regulations elsewhere in this Act.” Ill. Rev. Stat. 1977, ch. 111½, par. 1027(a).
The majority concludes:
“The power of the Board to set uniform, statewide environmental standards and the power of the County to zone property within its boundaries are therefore evidenced as distinct but concurrent powers that must be exercised cooperatively in the interest of environmental protection. To this end, the County, in zoning land for landfill sites, must adhere to the environmental regulations adopted by the Board, while the Agency, operating under the Board’s regulations, must comply with the County’s zoning ordinance when issuing permits for landfill sites. Thus, the authority granted the Board under the Act and the home rule authority granted to the County under the Constitution’s article VII, section 6, can be exercised in unison to accomplish the public policy expressed in article XI, section 1, of the 1970 Constitution.” (75 Ill. 2d at 516-17.)

Having expressed this hope for harmony, the majority fails to indicate what course is to be followed when the parties are unable to resolve the confrontation arising from antipodal grants of authority to the Board and the county.

The majority’s attempt to distinguish Carlson v. Village of Worth (1975), 62 Ill. 2d 406, on the basis that the county is a home rule unit cannot withstand scrutiny. Carlson did not involve solely the village’s zoning power; the ordinance sought to impose a permit requirement which, inter alia, included compliance with the village zoning ordinance. The county zoning statute (Ill. Rev. Stat. 1977, ch. 34, par. 3151 et seq.) has for many years provided:

“For the purpose of promoting the public health, safety, morals, comfort and general welfare, *** the board of supervisors or board of county commissioners *** shall have the power to regulate and restrict the location and use of buildings, structures and land ***.” (Ill. Rev. Stat. 1977, ch. 34, par, 3151.)

This broad grant of authority obviously confers upon a county the same zoning powers conferred by the Constitution upon a home rule unit. Amendments enacted since the effective date of the Constitution of 1970 have not amended or modified these provisions.

Apposite here is our statement in O’Connor v. City of Rockford (1972), 52 Ill. 2d 360, 367:

“[T]o hold here that the city’s use of the proposed site as a landfill may be permitted only upon issuance of a conditional use permit by Winnebago County, or that the county, by reason of its zoning ordinance may prohibit such use, contravenes the clearly expressed legislative intent that such operations be conducted only upon issuance of a permit from the Environmental Protection Agency. By the enactment of the Environmental Control Act, the General Assembly has expressly declared the need for ‘a unified state-wide program’ and provided the means for issuance of appropriate permits under regulations promulgated after taking into account precisely the conflicting interests shown by this record.”

MR. JUSTICE CLARK joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE MORAN MR. CHIEF JUSTICE WARD,

license: Public Domain

text:
    (No. 49229.
    THE CITY OF CHICAGO, Appellee, v. WALLACE WILSON et al., Appellants.

      Opinion filed May 26, 1978.

      WARD, C.J., and UNDERWOOD and RYAN, JJ., dissenting.
    Wendy Meltzer and Thomas F. Geraghty, of the Northwestern Legal Assistance Clinic, of Chicago, and David Goldberger, of the American Civil Liberties Union, of Chicago, for appellants.

      William R. Ouinlan, Corporation Counsel, of Chicago (Daniel Pascale and Mary Denise Cahill, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, the defendants, Wallace Wilson and Kim Kimberley, were convicted of having violated section 192 — 8 of the Municipal Code of the city of Chicago (Code), which prohibits a person from wearing clothing of the opposite sex with the intent to conceal his or her sex. Each defendant was fined $100. The appellate court affirmed (44 Ill. App. 3d 620), and this court granted leave to appeal.

Defendants were arrested on February 18, 1974, minutes after they emerged from a restaurant where they had had breakfast. Defendant Wilson was wearing a black, knee-length dress, a fur coat, nylon stockings and a black wig. Defendant Kimberley had a bouffant hair style and was wearing a pants suit, high-heeled shoes and cosmetic makeup. Defendants were taken to the police station and were required to pose for pictures in various stages of undress. Both defendants were wearing brassieres and garter belts;both had male genitals.

Prior to trial, defendants moved to dismiss the complaint on the grounds that section 192 — 8 was unconstitutional in that it denied them equal protection of the law and infringed upon their freedom of expression and privacy. This motion was denied.

At trial, the defendants testified that they were transsexuals, and were, at the time of their arrests, undergoing psychiatric therapy in preparation for a sex reassignment operation. As part of this therapy, both defendants stated, they were required to wear female clothing and to adopt a female life-style. Kimberley stated that he had explained this to the police at the time of his arrest. Both defendants said they had been transsexuals all of their lives and thought of themselves as females. The question of arrest is not an issue.

Section 192 — 8 of the Code provides:

“Any person who shall appear in a public place *** in a dress not belonging to his or her sex, with intent to conceal his or her sex, *** shall be fined not less than twenty dollars nor more than five hundred dollars for each offense.”

Defendants contend that section 192 — 8 is unconstitutionally vague, overly broad, and denies them equal protection under the law on account of sex. They argue that the section is overly broad, both on its face and as applied to them, in that it denies them freedom of expression protected by the first amendment and personal liberties protected by the ninth and fourteenth amendments of the United States Constitution.

The city asserts that section 192 — 8 is neither vague nor overly broad and that the section does not deny defendants equal protection under the law.

We find that the above-cited section, as applied to defendants here, is unconstitutional, and in so doing we do not, therefore, reach the issues of vagueness and equal protection.

The existence of unspecified constitutionally protected freedoms cannot be doubted. E.g., Roe v. Wade (1973), 410 U.S. 113, 152-54, 35 L. Ed. 2d 147, 176-78, 93 S. Ct. 705, 726-27; Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678.

In Kelley v. Johnson (1976), 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440, the Supreme Court was confronted with the question of whether one’s choice of appearance was constitutionally protected from governmental infringement. At issue was an order promulgated by petitioner, the commissioner of police for Suffolk County, New York, which order established hair-grooming standards for male members of the police force. The court acknowledged that the due process clause of the fourteenth amendment “affords not only a procedural guarantee against deprivation of ‘liberty,’ but likewise protects substantive aspects of liberty against unconstitutional restrictions by the State.” (425 U.S. 238, 244, 47 L. Ed. 2d 708, 713, 96 S. Ct. 1440, 1444.) The court observed, however, that its prior cases offered little, if any, guidance on whether the citizenry at large has some sort of liberty interest in matters of personal appearance. It assumed for purposes of its opinion that such did exist.

In determining the scope of that interest and the justification that would warrant its infringement, the court distinguished claims asserted by individuals of a uniformed police department from claims by the citizenry at large, noting that the distinction was “highly significant.” (425 U.S. 238, 245, 47 L. Ed. 2d 708, 714, 96 S. Ct. 1440, 1444.) The court held that, in the context of the case before it, the burden rested with the respondent police officer to demonstrate that there was no rational connection between the regulation and the police department’s legitimate function of promoting safety of persons and property. After analyzing the need for uniformity and discipline within the ranks of the police department, the court concluded that the challenged order was rationally related to two legitimate objectives: first, “to make police officers readily recognizable to the members of the public,” and second, to foster the “espirit de corps which such similarity is felt to inculcate within the police force itself.” (425 U.S. 238, 248, 7 L. Ed. 2d 708, 716, 96 S. Ct. 1440, 1446.) Mr. Justice Powell, who specially concurred, noted that “ [w] hen the State has an interest in regulating one’s personal appearance *** there must be a weighing of the degree of infringement of the individual’s liberty interest against the need for the regulation.” 425 U.S. 238, 249,47 L. Ed. 2d 708, 717, 96 S. Ct. 1440, 1447.

This court has long recognized restrictions on the State’s power to regulate matters pertinent to one’s choice of a life-style which has not been demonstrated to be harmful to society’s health, safety or welfare. E.g., People v. Fries (1969), 42 Ill. 2d 446 (statute requiring the wearing of a motorcycle helmet held invalid); City of Chicago v. Drake Hotel Co. (1916), 274 Ill. 408 (ordinance prohibiting public dancing in restaurants held invalid); Town of Cortland v. Larson (1916), 273 Ill. 602 (ordinance prohibiting the private possession of liquor held invalid); City of Zion v. Behrens (1914), 262 Ill. 510 (ordinance prohibiting smoking in public parks and on public streets held invalid).

In Haller Sign Works v. Physical Culture Training School (1911), 249 Ill. 436, a case which involved the regulation of biUboards for aesthetic purposes, this court noted:

“The citizen has always been supposed to be free to determine the style of architecture of his house, the color of the paint that he puts thereon, the number and character of trees he will plant, the style and quality of the clothes that he and his family will wear, and it has never been thought that the legislature could invade private rights so far as to prescribe the course to be pursued in these and other like matters, although the highly cultured may find on every street in every town and city many things that are not only open to criticism but shocking to the aesthetic taste.” (249 Ill. 436, 443.)

The notion that the State can regulate one’s personal appearance, unconfined by any constitutional strictures whatsoever, is fundamentally inconsistent with “values of privacy, self-identity, autonomy, and personal integrity that *** the Constitution was designed to protect.” Kelley v. Johnson (1976), 425 U.S. 238, 251, 47 L. Ed. 2d 708, 718, 96 S. Ct. 1440, 1447 (Marshall, J., dissenting).

Finding that the Constitution provides an individual some measure of protection with regard to his choice of appearance answers only the initial issue. Resolution of the second issue is more difficult: to determine the circumstances under which the interest can be infringed. It is at this juncture that Kelley, and cases subsequent thereto, offer little guidance. With the exception of one Federal decision — Williams v. Kleppe (1st Cir. 1976), 539 F.2d 803 — all of the cases subsequent to Kelley have involved regulations set in the context of an organized governmental activity. (E.g., East Hartford Education Association v. Board of Education (2d Cir. 1977), 562 F.2d 838, 860-63.) Such circumstance is distinguished from that in which a regulation, as here, controls the dress of the citizens at large. This distinction, as noted in Kelley, is “highly significant.”

Even though one’s choice of appearance is not considered a “fundamental” right (Richards v. Thurston (1st Cir. 1970), 424 F.2d 1281, 1284-85), the State is not relieved from showing some justification for its intrusion. As Kelley suggests, the degree of protection to be accorded an individual’s choice of appearance is dependent upon the context in which the right is asserted. It is, therefore, incumbent upon the court to analyze both the circumstances under which the right is asserted and the reasons which the State offers for its intrusion.

In this court, the city has asserted four reasons for the total ban against cross-dressing in public: (1) to protect citizens from being misled or defrauded; (2) to aid in the description and detection of criminals; (3) to prevent crimes in washrooms; and (4) to prevent inherently antisocial conduct which is contrary to the accepted norms of our society. The record, however, contains no evidence to support these reasons.

If we assume that the ordinance is, in part, directed toward curbing criminal activity, the city has failed to demonstrate any justification for infringing upon the defendants’ choice of public dress under the circumstances of this case.

Both defendants testified that they are transsexuals and were, at the time of their arrest, undergoing psychiatric therapy in preparation for a sex-reassignment operation. (For a general discussion of the therapy required prior to sex-reassignment surgery, see Comment, M.P. v. J.T.: An Enlightened Perspective on Transsexualism, 6 Cap. U.L. Rev. 403, 407-10 (1977); Note, The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 Conn. L. Rev. 288, 296 n.28 (1975); Comment, Transsexualism, Sex Reassignment Surgery and the Law, 56 Cornell L. Rev. 963, 972-74 (1971) (wherein it is noted that cross-dressing is recommended as part of a sex-reassignment preoperative therapy program).) Neither of the defendants was engaged in deviate sexual conduct or any other criminal activity. Absent evidence to the contrary, we cannot assume that individuals who cross-dress for purposes of therapy are prone to commit crimes.

The city’s fourth reason (as noted above) for prohibiting the defendants’ choice of public dress is apparently directed at protecting the public morals. In its brief, however, the city has not articulated the manner in which the ordinance is designed to protect the public morals. It is presumably believed that cross-dressing in public is offensive to the general public’s aesthetic preference. There is no evidence, however, that cross-dressing, when done as a part of a preoperative therapy program or otherwise, is, in and of itself, harmful to society. In this case, the aesthetic preference of society must be balanced against the individual’s well-being.

Through the enactment of section 17(l)(d) of the Vital Records Act (Ill. Rev. Stat. 1977, ch. 111½, par. 73 — 17(l)(d)), which authorizes the issuance of a new certificate of birth following sex-reassignment surgery, the legislature has implicitly recognized the necessity and validity of such surgery. It would be inconsistent to permit sex-reassignment surgery yet, at the same time, impede the necessary therapy in preparation for such surgery. Individuals contemplating such surgery should, in consultation with their doctors, be entitled to pursue the therapy necessary to insure the correctness of their decision.

Inasmuch as the city has offered no evidence to substantiate its reasons for infringing on the defendants’ choice of dress under the circumstances of this case, we do not find the ordinance invalid on its face; however, we do find that section 192 — 8 as applied to the defendants is an unconstitutional infringement of their liberty interest. The judgments of the appellate court and the circuit court are reversed and the cause is remanded to the circuit court with directions to dismiss.

Judgments reversed; cause remanded, with directions.

MR. CHIEF JUSTICE WARD,

dissenting:

The majority states that it does not find the ordinance to be unconstitutional on its face, but it concludes that the ordinance was unconstitutional as applied to these defendants. That conclusion is founded on the premise that the defendants’ conduct was part of a psychiatrically prescribed program to prepare them for sex-reassignment surgery. The only testimony in support of the defendants’ claim was that of the defendants themselves. No psychiatrist was called to testify that the defendants had been diagnosed as transsexuals or that cross-dressing had been prescribed as preoperative therapy. No letter or statement was offered in evidence. Neither defendant named the psychiatrist from whom he was receiving treatment. Indeed, the defendant Wilson, on cross-examination, testified that he didn’t know what sex-reassignment surgery would involve and said he did not know the doctor who would perform it.

The majority ignores a basic consideration — that the credibility to be given the defendants’ testimony was for the trial judge — and proceeds to discuss therapy in preparation for sex-reassignment surgery. That is a subject of sensitivity and importance, but I consider it is not reached here.

UNDERWOOD and RYAN, JJ., join in this dissent.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 50930.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LESLIE AUDI, Appellee.

      Opinion filed March 20, 1979.

    Rehearing denied May 30, 1979.

      William J. Scott, Attorney General, of Springfield, and Howard L. Hood, State’s Attorney, of Murphysboro (Donald B. Mackay, Melbourne A. Noel, Jr., and Dale M. Bennett, Assistant State’s Attorneys, of Chicago, and Raymond F. Buckley, Jr., and Keith P. Vanden Dooren, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Hogan Sc Jochums, of Murphysboro, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a bench trial in the circuit court of Jackson County, defendant, Leslie Audi, was convicted on three counts of delivery of a controlled substance (heroin) in violation of section 401(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56½, par. 1401(b)). She was sentenced to concurrent terms of 5 years’ probation, the first 30 days of which were to be served in the county jail, fined $1,000 on each offense, and ordered to reimburse the Metropolitan Enforcement Group of Southern Illinois the $150 used to purchase the heroin. The appellate court reversed (61 Ill. App. 3d 483), and we allowed the People’s petition for leave to appeal.

In reversing the judgment the appellate court held that the informations upon which defendant’s convictions were based were improperly verified. The printed forms upon which the informations were drawn were signed by the assistant State’s Attorney, who stated that the facts charging the crime were “true and correct to the best of his information and belief.” The appellate court held that the provision of section 111— 3(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111—3(b)) that “an information shall be signed by the State’s Attorney and sworn to” was mandatory, and not directory only, and that People v. Arey (1925), 318 Ill. 305, “required the initiation of prosecution on positive oath rather than a mere statement on information and belief.” 61 Ill. App. 3d 483, 485.

The People contend that Arey and the cases upon which it was based should be overruled, and that, assuming the validity of Arey, any error in these informations was harmless beyond a reasonable doubt.

An examination of the authorities persuades us that there is no constitutional requirement that an information be verified and that the necessity for verification rests upon the provisions of section 111 — 3(b). In Weeks v. United States (2d Cir. 1914), 216 F. 292, the court reviewed the early authorities (4 W. Blackstone, Commentaries *309, *310) and concluded that the King’s Attorney General possessed the right to prosecute by information without application to any tribunal and without verification; that the duties and powers of prosecuting attorneys in this country are similar to those exercised by the English Attorney General; and that as the common law developed in this country, informations filed by a prosecuting attorney need not be verified by oath. In Long v. People (1890), 135 Ill. 435, it was held that no verification was necessary except where the information is by someone other than the State’s Attorney or Attorney General. Later cases, which hold to the contrary (People v. Clark (1917), 280 Ill. 160;People v. Shockley (1924), 311 Ill. 255; People v. Arey (1925), 318 Ill. 305; People ex rel. Bain v. Meyering (1931), 347 Ill. 344) “must be read in the light of the factual situation before the court. In each of them the court was called to determine the validity of an arrest warrant issued without a sworn complaint, when tested against the constitutional requirement. None of them involved the validity of a complaint which followed an arrest without a warrant, as did the complaint in this case. The constitutional provisions do not purport to govern such a situation, and the considerations that dictate safeguards against the promiscuous use of arrest warrants do not extend to the form and content of the document by which the prosecution of a criminal offense is initiated.

“We hold, therefore, that the constitutional provisions upon which the defendant relies should not be extended to require a sworn complaint as a jurisdictional prerequisite to the prosecution of a criminal offense. To the extent that the language in Meyering, Clark and Shockley, and in other decisions, might be thought to have asserted such a constitutional requirement, that language is not adhered to ”People v. Harding (1966), 34 Ill. 2d 475, 481-82.

This appeal presents the narrow question whether an information charging an offense must be verified by positive oath or whether it is sufficient that it be verified on the State’s Attorney’s information and belief.

One reason frequently given for requiring a positive oath was that it was necessary in order that perjury charges lie against a State’s Attorney who knew that the facts stated in the information were false. (See, e.g., People v. Shockley (1924), 311 Ill. 255, 256; People v.Arey (1925), 318 Ill. 305, 306.) An oath on information and belief, if made with knowledge of its falsity, renders its maker equaUy susceptible to prosecution for peijury (Ill. Rev. Stat. 1977, ch. 38, par. 32—2). To require every State’s Attorney or assistant State’s Attorney to have personal knowledge of the facts in each of the informations filed is probably impossible and, in any event, highly impractical. (People v. Kennedy (1922), 303 Ill. 423.) Either a positive oath or an oath on information and belief provides sufficient safeguard against the evil sought to be eliminated — the indiscriminate filing of informations without adequate factual bases.

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

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51308.
    PHILLIP W. BAILEY et al, Appellants, v. RAYMOND TIMPONE et al. (Raymond Timpone, Indiv. and as Ex’r, Appellee).

      Opinion filed May 18, 1979.

      John T. Phipps, of Phipps & Evans, of Champaign, for appellants.
    Winkelmann and Winkelmann, of Urbana, for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiffs are lessees under a lease dated August 31, 1974, and assigned to them effective February 24, 1975. At the end of 1975, plaintiffs gave notice of the exercise of their option to renew the lease for 10 years. Under the terms of the lease the determination of the amount of rent to be paid on renewal was submitted to binding arbitration. The issue, as presented by the parties, is whether the income on which plaintiffs’ rent is to be calculated includes funds received or charges added to prices on account of plaintiffs’ tax liability under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1975, ch. 120, pars. 440 to 453). On motion of plaintiffs, the circuit court of Champaign County entered an order, consistent with the expressed understanding of a majority of the arbitrators, that funds collected for payment of the retailers’ occupation tax should not be included in calculating the percentage rent. The appellate court, with one justice dissenting, reversed and remanded in a Rule 23 order (58 Ill. 2d R. 23). (61 Ill. App. 3d 1111.) We allowed plaintiffs’ petition for leave to appeal.

Because the parties could not agree on the amount of rent to be paid on renewal, arbitration, as authorized by the lease, had become necessary. Pursuant to the terms of the lease, each party chose one arbitrator. They in turn were to jointly choose a third, but since they were unable to do so, the circuit court, on motion of plaintiffs as provided by the lease, appointed a neutral arbitrator. The arbitrators were to be “qualified by recent experience in dealing with rental properties in the Champaign Urbana area” and were to be either “licensed real estate brokers a substantial part of whose business involves the sale or lease of commercial property” or “experienced appraisers, a substantial part of whose business consists of fixing rental values of commercial real estate.”

The lease expressly provided that “[t]he decision of the majority of the arbitrators shall be final, conclusive, and binding on the parties with respect to the rental for the extended term, except for fraud.” The only specific guidance the lease gave concerning the amount of rent to be paid on renewal was the establishment of a minimum rent of $1,500 per month.

As directed, the arbitrators met and, following a presentation by the parties’ arbitrators of their conclusions and an open discussion “of all factors considered relevant to the estimation of the fair cash rental value of the premises,” reached a unanimous conclusion as to the rent on renewal. The percentage rent was set at 7% of “all Gross Income, from the premises, over and in excess of $300,000.00 annually,” with a minimum of $2,500 monthly. The neutral arbitrator reported to counsel for both parties that the original rent provision had been thus altered but that the remainder of the lease was unchanged. Under the original lease, rent had been set at 6% of the “total gross income from the premises in excess of $200,000 annually,” and the minimum had been $1,500.

On May 31, 1977, plaintiffs filed a document entitled “Petition for Clarification of Arbitrators’ Report” in which they asked the court to refer to the arbitrators the question of the meaning of the term “all Gross Income” as used in their report. Plaintiffs set forth defendants’ contention that “all Gross Income” included the amounts plaintiffs added to prices for the retailers’ occupation tax and defendants’ contention that plaintiffs are therefore liable to them for 7% of those tax monies collected. Plaintiffs alleged that “Gross Income” does not include tax monies collected and passed directly to the State. Defendants filed an answer denying that the matter should be submitted to the arbitrators and asking the court to enter an order interpreting the language used by the arbitrators in fixing the percentage rent. The record does not indicate that the court took any action at this time.

On September 14, 1977, plaintiffs filed a pleading entitled “Motion to Construe Lease According to Arbitrators’ Report” in which they asked the court to enter an order, consistent with the determination of the arbitrators, as to the meaning of the term “Gross Income, from the premises.” Attached to the motion were letters to counsel from plaintiffs’ arbitrator and the neutral arbitrator indicating that the term did not include monies collected for the retailers’ occupation tax. The letter from the neutral arbitrator indicated that defendants’ arbitrator was not available. The defendants filed no written response.

The letter from the neutral arbitrator stated that, when the arbitrators met to set the fair cash rental value of the premises on renewal of the lease, they did not discuss the meaning of the term “all Gross Income, from the premises.” The letter stated that similar leases typically excluded sales tax collected from the gross receipts on which rent is calculated and concluded that such tax is not income to the lessee “from the premises” and should therefore be excluded from the “Gross Income” to which the percentage rate should apply. Plaintiffs ’ arbitrator also indicated that the definition of the term “Gross Income” was not discussed when the question of rent on renewal of the lease was arbitrated but concluded, based upon his experience with percentage leases, that amounts collected for sales tax should not be included in the gross sales figure on which the percentage rent should be calculated.

Based on the arguments of counsel, the pleadings, and the arbitrators’ letters attached as exhibits, the trial court concluded that “Gross Income” did not include amounts collected from customers to cover plaintiffs ’ liability under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1975, ch. 120, pars. 440 to 453). It further ordered defendants to credit against subsequent monthly rental charges the sum of $1,773.57, previously paid by plaintiffs on demand by defendants for rental payments calculated on the basis of income including amounts collected for the retailers’ occupation tax. The appellate court reversed on the basis of its own construction of the term “Gross Income, from the premises,” and remanded for proceedings not inconsistent with the views expressed in the opinion; presumably the trial court was to calculate the additional rent plaintiffs owed. We reverse.

The issue here, as we see it, concerns the role the court should play in interpreting the rent provision set by the arbitrators. The construction of legal terminology used in the lease is not at issue since the arbitrators’ binding determination of the rent on renewal of the lease has, by agreement of the parties, replaced the original rent provision. The lease agreement placed no restrictions on the language the arbitrators were to use in fixing the fair cash rental value of the premises on renewal of the lease and directed only that the rent on renewal not be less than $1,500 per month.

We hold first that the judicial role in interpreting the arbitrators’ rental determination here should be limited in a manner analogous to the statutorily constrained role the courts may play in reviewing arbitration awards under the Uniform Arbitration Act (Ill. Rev. Stat. 1977, ch. 10, pars. 101 to 123). The Act is not directly applicable since the lease did not technically call for arbitration in that it made no provision for a quasi-judicial determination of any dispute concerning rent on renewal, but called instead for an “appraisement,” an application of the arbitrators’ skill and knowledge to determine the fair cash rental value of the premises (Norton v. Gale (1880), 95 Ill. 533, 543; Pearson v. Sanderson (1889), 128 Ill. 88, 93-94; Sebree v. Board of Education (1912), 254 Ill. 438, 446). Nonetheless, the salutary purposes for permitting an informal mechanism to resolve private disputes finally and expeditiously are served here by limiting judicial intercession in the decision of the arbitrators. We hold therefore that the proper role for the courts here was to enter an order consistent with the meaning a majority of the arbitrators attached to the term “Gross Income.” When a question arose concerning the meaning of the term “Gross Income” as used by the arbitrators, they, rather than the courts, were entitled to clarify the term in order to complete the function which the parties had assigned to them: to finally and conclusively establish the rent. See La Vale Plaza, Inc. v. R. S. Noonan, Inc. (3d Cir. 1967), 378 F.2d 569, 573, 37 A.L.R.3d 189, 196 (applying Pennsylvania law).

This court has long approved lease agreements to submit questions of valuation to appraisement or arbitration and has refused to interfere with the arbitrators’ valuation absent fraud or mistake, even though the agreements were not technically classified as arbitration agreements and were not governed by all the rules applicable to arbitration. (See, e.g., Norton v. Gale (1880), 95 Ill. 533, 540-41; Sebree v. Board of Education (1912), 254 Ill. 438, 446.) The Supreme Court of Arizona too has affirmed the principle that the scope of review with respect to agreements such as the one here should be no broader than that which applies to arbitrations. Although such agreements may call for less formal proceedings than arbitrations, “both provide a contractual method for settling questions in a less complicated and expensive manner than through court adjudication. *** [W] hen, as here, parties agree to have value affixed by an appraisal, they must abide by their own agreement ***.” Hirt v. Hervey (1978), 118 Ariz. 543, 545, 578 P.2d 624, 626.

The parties here agreed that the arbitrators were to have binding authority to conclusively and finally establish the fair cash rental value of the premises through the exercise of their expertise in real estate matters. We conclude that the trial court properly deferred to the meaning attached to the term “Gross Income” by a majority of the arbitrators and properly entered an order in accordance with the arbitrators’ understanding of the term; the appellate court erred in interposing its own determination of the meaning of “Gross Income.” Accordingly, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51270.
    JAMES R. BROWN et al., Appellees, v. MAUREEN M. LOBER, Ex’r, Appellant.

      Opinion filed May 18, 1979.

      Maureen M. Lober, of Litchfield (Gerald Patrick Huber, of counsel), for appellant.
    Paul McWilliams, of McWilliams & McWilliams, of Litchfield, for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiffs instituted this action in the Montgomery County circuit court based on an alleged breach of the covenant of seisin in their warranty deed. The trial court held that although there had been a breach of the covenant of seisin, the suit was barred by the 10-year statute of limitations in section 16 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 17). Plaintiffs’ post-trial motion, which was based on an alleged breach of the covenant of quiet enjoyment, was also denied. A divided Fifth District Appellate Court reversed and remanded. (63 Ill. App. 3d 727.) We allowed the defendant’s petition for leave to appeal.

The parties submitted an agreed statement of facts which sets forth the relevant history of this controversy. Plaintiffs purchased 80 acres of Montgomery County real estate from William and Faith Bost and received a statutory warranty deed (Ill. Rev. Stat. 1957, ch. 30, par. 8), containing no exceptions, dated December 21, 1957. Subsequently, plaintiffs took possession of the land and recorded their deed.

On May 8, 1974, plaintiffs granted a coal option to Consolidated Coal Company (Consolidated) for the coal rights on the 80-acre tract for the sum of $6,000. Approximately two years later, howeyer, plaintiffs “discovered” that they, in fact, owned only a one-third interest in the subsurface coal rights. It is a matter of public record that, in 1947, a prior grantor had reserved a two-thirds interest in the mineral rights on the property. Although plaintiffs had their abstract of title examined in 1958 and 1968 for loan purposes, they contend that until May 4, 1976, they believed that they were the sole owners of the surface and subsurface rights on the 80-acre tract. Upon discovering that a prior grantor had reserved a two-thirds interest in the coal rights, plaintiffs and Consolidated renegotiated their agreement to provide for payment of $2,000 in exchange for a one-third interest in the subsurface coal rights. On May 25, 1976, plaintiffs filed this action against the executor of the estate of Faith Bost, seeking damages in the amount of $4,000.

The deed which plaintiffs received from the Bosts was a general statutory form warranty deed meeting the requirements of section 9 of “An Act concerning conveyances” (Ill. Rev. Stat. 1957, ch. 30, par. 8). That section provides:

“Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.” Ill. Rev. Stat. 1957, ch. 30, par. 8.

The effect of this provision is that certain covenants of title are implied in every statutory form warranty deed. Subsection 1 contains the covenant of seisin and the covenant of good right to convey. These covenants, which are considered synonymous (McNitt v. Turner (1873), 83 U.S. (16 Wall.) 352, 21 L. Ed. 341), assure the grantee that the grantor is, at the time of the conveyance, lawfully seized and has the power to convey an estate of the quality and quantity which he professes to convey. Maxwell v. Redd (1972), 209 Kan. 264, 496 P.2d 1320.

Subsection 2 represents the covenant against incumbrances. An incumbrance is any right to, or interest in, land which may subsist in a third party to the diminution of the value of the estate, but consistent with the passing of the fee by conveyance. Marathon Builders, Inc. v. Polinger (1971), 263 Md. 410, 283 A.2d 617; Aczas v. Stuart Heights, Inc. (1966), 154 Conn. 54, 221 A.2d 589.

Subsection 3 sets forth the covenant of quiet enjoyment, which is synonymous with the covenant of warranty in Illinois. (Biwer v. Martin (1920), 294 Ill. 488; Barry v. Guild (1888), 126 Ill. 439; Bostwick v. Williams (1864), 36 Ill. 65.) By this covenant, “the grantor warrants to the grantee, his heirs and assigns, the possession of the premises and that he will defend the title granted by the terms of the deed against persons who may lawfully claim the same, and that such covenant shall be obligatory upon the grantor, his heirs, personal representatives and assigns.” Biwer v. Martin (1920), 294 Ill. 488, 497.

Plaintiffs’ complaint is premised upon the fact that “William Roy Bost and Faith Bost covenanted that they were the owners in fee simple of the above described property at the time of the conveyance to the plaintiffs.” While the complaint could be more explicit, it appears that plaintiffs were alleging a cause of action for breach of the covenant of seisin. This court has stated repeatedly that the covenant of seisin is a covenant in praesenti and, therefore, if broken at all, is broken at the time of delivery of the deed. Tone v. Wilson (1876), 81 Ill. 529; Jones v. Warner (1876), 81 Ill. 343.

Since the deed was delivered to the plaintiffs on December 21, 1957, any cause of action for breach of the covenant of seisin would have accrued on that date. The trial court held that this cause of action was barred by the statute of limitations. No question is raised as to the applicability of the 10-year statute of limitations (Ill. Rev. Stat. 1975, ch. 83, par. 17). We conclude, therefore, that the cause of action for breach of the covenant of seisin was properly determined by the trial court to be barred by the statute of limitations since plaintiffs did not file their complaint until May 25, 1976, nearly 20 years after their alleged cause of action accrued.

In their post-trial motion, plaintiffs set forth as an additional theory of recovery an alleged breach of the covenant of quiet enjoyment. The trial court, without explanation, denied the motion. The appellate court reversed, holding that the cause of action on the covenant of quiet enjoyment was not barred by the statute of limitations. The appellate court theorized that plaintiffs’ cause of action did not accrue until 1976, when plaintiffs discovered that they only had a one-third interest in the subsurface coal rights and renegotiated their contract with the coal company for one-third of the previous contract price. The primary issue before us, therefore, is when, if at all, the plaintiffs’ cause of action for breach of the covenant of quiet enjoyment is deemed to have accrued.

This court has stated on numerous occasions that, in contrast to the covenant of seisin, the covenant of warranty or quiet enjoyment is prospective in nature and is breached only when there is an actual or constructive eviction of the covenantee by the paramount titleholder. Biwer v. Martin (1920), 294 Ill. 488; Barry v. Guild (1888), 126 Ill. 439; Scott v. Kirkendall (1878), 88 Ill. 465; Bostwick v. Williams (1864), 36 Ill. 65; Moore v. Vail (1855), 17 Ill. 185.

The cases are also replete with statements to the effect that the mere existence of paramount title in one other than the covenantee is not sufficient to constitute a breach of the covenant of warranty or quiet enjoyment: “[T] here must be a union of acts of disturbance and lawful title, to constitute a breach of the covenant for quiet enjoyment, or warranty ***.” (Barry v. Guild (1888), 126 Ill. 439, 446.) “[T]here is a general concurrence that something more than the mere existence of a paramount title is necessary to constitute a breach of the covenant of warranty.” (Scott v. Kirkendall (1878), 88 Ill. 465, 467.) “A mere want of title is no breach of this covenant. There must not only be a want of title, but there must be an ouster under a paramount title.” Moore v. Vail (1855), 17 Ill. 185, 189.

The question is whether plaintiffs have alleged facts sufficient to constitute a constructive eviction. They argue that if a covenantee fails in his effort to sell an interest in land because he discovers that he does not own what his warranty deed purported to convey, he has suffered a constructive eviction and is thereby entitled to bring an action against his grantor for breach of the covenant of quiet enjoyment. We think that the decision of this court in Scott v. Kirkendall (1878), 88 Ill. 465, is controlling on this issue and compels us to reject plaintiffs’ argument.

In Scott, an action was brought for breach of the covenant of warranty by a grantee who discovered that other parties had paramount title to the land in question. The land was vacant and unoccupied at all relevant times. This court, in rejecting the grantee’s claim that there was a breach of the covenant of quiet enjoyment, quoted the earlier decision in Moore v. Vail (1855), 17 Ill. 185, 191:

“ ‘Until that time, (the taking possession by the owner of the paramount title,) he might peaceably have entered upon and enjoyed the premises, without resistance or molestation, which was all his grantors covenanted he should do. They did not guarantee to him a perfect title, but the possession and enjoyment of the premises.’ ” 88 Ill. 465, 468.

Relying on this language in Moore, the Scott court concluded:

“We do not see but what this fully decides the present case against the appellant. It holds that the mere existence of a paramount title does not constitute a breach of the covenant. That is all there is here. There has been no assertion of the adverse title. The land has always been vacant. Appellant could at any time have taken peaceable possession of it. He has in no way been prevented or hindered from the enjoyment of the possession by any one having a better right. It was but the possession and enjoyment of the premises which was assured to him, and there has been no disturbance or interference in that respect. True, there is a superior title in another, but appellant has never felt ‘its pressure upon him.’ ”88 Ill. 465, 468-69.

Admittedly, Scott dealt with surface rights while the case before us concerns subsurface mineral rights. We are, nevertheless, convinced that the reasoning employed in Scott is applicable to the present case. While plaintiffs went into possession of the surface area, they cannot be said to have possessed the subsurface minerals. “Possession of the surface does not carry possession of the minerals ***. [Citation.] To possess the mineral estate, one must undertake the actual removal thereof from the ground or do such other act as will apprise the community that such interest is in the exclusive use and enjoyment of the claiming party.” Failoni v. Chicago & North Western Ry. Co. (1964), 30 Ill. 2d 258, 262.

Since no one has, as yet, undertaken to remove the coal or otherwise manifested a clear intent to exclusively “possess” the mineral estate, it must be concluded that the subsurface estate is “vacant.” As in Scott, plaintiffs “could at any time have taken peaceable possession of it. [They have] in no way been prevented or hindered from the enjoyment of the possession by any one having a better right.” (88 Ill. 465, 468.) Accordingly, until such time as one holding paramount title interferes with plaintiffs’ right of possession (e.g., by beginning to mine the coal), there can be no constructive eviction and, therefore, no breach of the covenant of quiet enjoyment.

What plaintiffs are apparently attempting to do on this appeal is to extend the protection afforded by the covenant of quiet enjoyment. However, we decline to expand the historical scope of this covenant to provide a remedy where another of the covenants of title is so clearly applicable. As this court stated in Scott v. Kirkendall (1878), 88 Ill. 465, 469:

“To sustain the present action would be to confound all distinction between the covenant of warranty and that of seizin, or of right to convey. They are not equivalent covenants. An action will lie upon the latter, though there be no disturbance of possession. A defect of title will suffice. Not so with the covenant of warranty, or for quiet enjoyment, as has always been held by the prevailing authority.”

The covenant of seisin, unquestionably, was breached when the Bests delivered the deed to plaintiffs, and plaintiffs then had a cause of action. However, despite the fact that it was a matter of public record that there was a reservation of a two-thirds interest in the mineral rights in the earlier deed, plaintiffs failed to bring an action for breach of the covenant of seisin within the 10-year period following delivery of the deed. The likely explanation is that plaintiffs had not secured a title opinion at the time they purchased the property, and the subsequent examiners for the lenders were not concerned with the mineral rights. Plaintiffs’ oversight, however, does not justify us in overruling earlier decisions in order to recognize an otherwise premature cause of action. The mere fact that plaintiffs’ original contract with Consolidated had to be modified due to their discovery that paramount title to two-thirds of the subsurface minerals belonged to another is not sufficient to constitute the constructive eviction necessary to a breach of the covenant of quiet enjoyment.

Finally, although plaintiffs also have argued in this court that there was a breach of the covenant against incumbrances entitling them to recovery, we decline to address this issue which was argued for the first time on appeal. It is well settled that questions not raised in the trial court will not be considered by this court on appeal. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141; Ray v. City of Chicago (1960), 19 Ill. 2d 593.

Accordingly, the judgment of the appellate court is reversed, and the judgment of the circuit court of Montgomery County is affirmed.

Appellate court reversed; circuit court affirmed.