text:
    (No. 50288.
    JOSEPH KUJAWINSKI, Appellee, v. BETTY ANN KUJAWINSKI et al.-(Edward O. Laumann, Appellant.)

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    Albert E. Jenner, Jr., Marshall J. Auerbach, Robert E. Pfaff, James H. Feldman, and William D. Snapp, of Chicago (Jenner & Block, of counsel), for appellant.
    Bernard Kaufman and Stuart N. Litwin, of Chicago (Kaufman & Litwin, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This case is before us to determine the constitutionality of certain provisions of the Illinois Marriage and Dissolution of Marriage Act which became effective October 1, 1977 (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.).

The cause was originally filed in the circuit court of Cook County as a class action seeking a declaratory judgment. Plaintiff, Joseph Kujawinski, who was a party to a pending divorce action, brought this action individually and as a representative of that class of persons similarly situated who were parties to pending divorce litigation or who would become parties to divorce litigation and who had ownership, title and a vested right to property. Plaintiff alleged that he was the father of six children bom of his marriage to defendant Betty Ann Kujawinski. Edward O. Laumann, also a party to a pending divorce action, was permitted to intervene as a defendant. The matter was submitted to the trial court as a question of law on the pleadings. Prior to a hearing on the merits, plaintiff’s motion to dismiss the class was granted, and the matter proceeded only on plaintiff’s individual claims. The intervenor remained in the action.

The trial court entered an order declaring unconstitutional sections 503(b), 503(d), 510(c), 513, 801(b), 801(c), and 801(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 503(b), 503(d), 510(c), 513, 801(b), 801(c), 801(d)). The provisions relate primarily to the following three areas: (1) the retrospective application of the new act to property acquired prior to the effective date of the Act; (2) the allocation of funds for the education of children beyond the minority age of the children; and (3) the provision for child support beyond the death of the parent obligated to support. Because the trial court declared the above-cited provisions invalid, Laumann, defendant-intervenor (defendant), appealed directly to this court pursuant to Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)).

We will first address those matters raised sua sponte by the trial court, as opposed to those raised by the parties. We note that the plaintiff has failed to pursue the former matters in this court.

The record indicates that the trial court, sua sponte, declared unconstitutional sections 801(c) and 801(d) of the Act, but that court’s order did not incorporate any conclusions of law which might indicate the basis for such holding. Section 801(c) concerns modification proceedings, and section 801(d) governs appeals which were pending prior to October 1, 1977. (See Sommer v. Borovic (1977), 69 Ill. 2d 220, 238.) Neither section is applicable to the plaintiff, who alleges only that he was a party to a divorce action pending in the circuit court of Cook County. This court has often propounded that “[i]t is axiomatic that one may not complain of a statutory provision which does not affect him” (Spalding v. City of Granite City (1953), 415 Ill. 274, 283), and that a court may not “determine the constitutionality of the provisions of an act which do not affect the parties to the cause under consideration.” (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 259, cert. denied (1971), 401 U.S. 928, 28 L. Ed. 2d 209, 91 S. Ct. 924.) Accordingly, the trial court erred in declaring unconstitutional sections 801(c) and 801(d).

Also, there is some question as to whether the trial court’s order, which declared unconstitutional section 513, should be read to apply to the entire provision. A part of the section relates only to support for mentally or physically disabled children. Although plaintiff alleged that he was the father of six children, the pleadings did not state that any of the children were mentally or physically disabled. To the extent that the trial court order embraced that part of section 513, it erred in determining the constitutionality of a statutory proviso that did not affect the parties involved.

Further, the record reveals that plaintiff challenged the constitutionality of section 801(b) only as it applies to property acquired prior to the effective date of the Act. The section provides that the 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. ***” (Ill. Rev. Stat. 1977, ch. 40, par. 801(b).) Nevertheless, the trial court declared the section unconstitutional and indicated during the trial proceedings that the section usurps the judicial function in violation of the separation of powers doctrine embodied in article II, section 1, of the Illinois Constitution. The transcript reflects that the trial court was concerned that this section prevents the court from determining facts in cases pending before it. We find this concern unwarranted. The section does not dictate the resolution of facts in pending actions; it merely mandates which law the court is to apply to the facts in pending cases. As this court has stated in the past:

“The entry of an order in a cause pending in court is a judicial function, which is not to be exercised at the direction of the legislature but in the judgment of the court. The legislature has power to change the law, and the court, in the decision of pending cases, will dispose of them under the law in force at the time its judgment is rendered.” (People ex rel. Coen v. Henry (1921), 301 Ill. 51, 53.)

Therefore, section 801(b) does not invade the province of the judiciary in violation of the separation of powers.

Plaintiff’s objection to section 801(b) is that it retrospectively applies the “marital property” provisions of section 503(b) to his case, and thereby precipitates an unconstitutional impairment of the obligation of contracts and an unconstitutional deprivation of property without due process of law. The latter section provides, in pertinent part:

“All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage *** is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 40, par. 503(b).)

Plaintiff asserts that the effect of this provision, when applied restrospectively to property acquired prior to the effective date of the Act, is to convey to a spouse who had no interest in certain property prior to October 1, 1977, a partnership interest in that property. Plaintiff argues that the conveyance becomes operative during the marriage and is effective regardless of whether the marriage is ever dissolved. It is primarily upon this construction of the Act that plaintiff predicates his conclusion that retrospective application of such divestment of his property violates the contract and due process clauses of the Federal and State constitutions.

Plaintiff’s construction completely distorts the nature and function of the provision. Section 503(b), as plaintiff concedes, must be read in consort with the provisions that immediately precede and succeed it. Section 503(a) is definitional and explains:

“For purposes of this Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘non-marital property’: ***.” (Ill. Rev. Stat. 1977, ch. 40, par. 503(a).)

The provision then lists six such exceptions, including property acquired by gift or devise and property acquired in exchange for property acquired before the marriage.

Section 503(c) gives the two previous sections operative effect. It states:

“In a proceeding for dissolution of marriage *** the court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors ***.” Ill. Rev. Stat. 1977, ch. 40, par. 503(c).

The three provisions are based on former section 307 of the Uniform Marriage and Divorce Act. The explanatory note accompanying that section clearly establishes its limited function. It resolves that “marital property” is defined “only for the purposes of divison on dissolution of marriage or legal separation. No attempt is made to regulate the respective interests of the spouses in property during the existence of the marriage.” (Uniform Marriage and Divorce Act (U.L.A.) sec. 307, Commissioners’ Note, at 492 (1973).) This function comports with the legislative purposes enunciated in section 102 of the Illinois act. These legislative purposes include mitigating the potential harm caused by the process of legal dissolution, making reasonable provision during and after litigation, and eliminating the consideration of marital misconduct in the adjudication of rights and duties incident to the legal dissolution of marriage, legal separation and declaration of invalidity of marriage. (Ill. Rev. Stat. 1977, ch. 40, pars. 102(4), (5), (6).) The Act does not purport to affect property interests during the marriage. The term “marital property” is a nomenclature devised to realize an equitable distribution of property upon termination of the marriage. Operation of the term “marital property” under the Act is not triggered until the time of dissolution. Section 503(b) does not prevent married persons from owning property separately during the marriage and disposing of it in any fashion that the property-owning spouse may choose. Accord, Fournier v. Fournier (Me. 1977), 376 A.2d 100, 102; Painter v. Painter (1974), 65 N.J. 196, 216 n.5, 320 A.2d 484, 494 n.5.

This statutory construction, plaintiff persists, does not mitigate the constitutional infirmity of the provision. His position remains that the transfer of an interest in his property to a spouse who had no interest in that property, even if only upon termination of marriage, impairs his contractual relations with third persons and divests him of vested property rights. With regard to the contract clauses of the Federal and State constitutions (U.S. Const., art. I, sec. 10; Ill. Const. (1970), art. I, sec. 16), plaintiff’s constitutional objection is difficult to discern. Plaintiff agrees that it is not the marriage contract between the spouses which is being impaired, for marriage contracts are not deemed to be protected by the constitutional contract clauses. (Maynard v. Hill (1888), 125 U.S. 190, 210, 31 L. Ed. 654, 658, 8 S. Ct. 723, 729; Home Building & Loan Association v. Blaisdell (1933), 290 U.S. 398, 429 n.8, 78 L. Ed. 413, 424 n.8, 54 S. Ct. 231, 236 n.8; Rothman v. Rothman (1974), 65 N.J. 219, 225 n.4, 320 A.2d 496, 499 n.4.) Plaintiff, however, hypothesizes that his interest in property jointly held by him and a third party may be awarded and transferred to his spouse, pursuant to section 503(b), thus impairing the preexisting contractual relationship. Again, plaintiff misconstrues the effect of the section. It merely classifies the aggregate property interests of the spouses for the purposes of equitably distributing the property. That which is classified as “marital property” is subject to distribution within those limitations set by laws governing transfers, assignments and conveyances of such property. For instance, if a spouse is awarded plaintiff’s property which is subject to an outstanding contractual obligation to a third party, the third party is not prevented from enforcing his claim against the plaintiff. Or if a partnership exists between plaintiff and a third party, the court might not compel conveyance to the spouse of property owned by the partnership because of the prohibition against assignments in the Uniform Partnership Act (Ill. Rev. Stat. 1977, ch. 106½, par. 25(2)(b)). Section 503(b) does not require that each “marital property” interest be divided between the spouses or transferred in whole or in part to the nonowning spouse. We must presume that the “marital property” will be distributed pursuant to section 503(b) so as to avoid the impairment of any contractual obligations owed to third parties who are not parties to the dissolution proceeding. We discern no other cognizable objection by plaintiff relative to the constitutional impairment of the obligation of contracts.

Plaintiff also argues that the section unconstitutionally deprives him of a vested interest in the property which he had acquired and owned prior to the effective date of the Act. He characterizes a vested interest in property as one which cannot be retrospectively abrogated by the legislature except when reasonably justified in the exercise of the State’s police power. Therefore, here, we must balance the property interest to be impaired against the State interest to be promoted in applying section 503(b) retrospectively to such property.

As earlier noted, section 503 does not directly divest or transfer property. It does not affect plaintiff’s property in any way during the marriage. It merely classifies as “marital property” that which becomes subject to distribution upon termination of the marriage. This is a critical qualification because, even under the preexisting law, as regards his spouse, plaintiff did not have an absolute right to his property upon termination of his marriage. Under former law, the property interest could be impaired in that, whenever a divorce was granted, the court could compel the conveyance of property owned by one spouse to the other spouse upon a showing that the latter spouse contributed financially to the acquisition or improvement of the property. (Ill. Rev. Stat. 1975, ch. 40, par. 18.) A court could also order the conveyance of real or personal property to the nonowning spouse for the purpose of support in limited situations. (Ill. Rev. Stat. 1975, ch. 40, par. 19.) These provisions for “special equities” and “alimony in gross,” respectively, permitted the court to invade the property of the title-owning spouse for the purpose of transferring it to the other spouse upon termination of the marriage. Consequently, the retrospective application of section 503(b) to property which was already subject to divestment in a divorce proceeding cannot be said to have impaired an absolute property interest. It merely enhanced a remedy already available to the non-property-owning spouse. Plaintiff had no reasonable expectation, under the preexisting law, that his property was immune from transfer to his spouse upon termination of the marriage.

Against this limited property interest, we must appraise and compare the State interest to be promoted by applying section 503 retrospectively. “It is, of course, not for us to say whether the particular law before us is desirable from the standpoint of legislative policy, since the wisdom of legislation is a matter committed exclusively to a co-ordinate branch of our government, the General Assembly. It is sufficient to show that it is not unreasonable in the light of legislative objectives and was within the province of legislative power.” (People ex rel. Doty v. Connell (1956), 9 Ill. 2d 390, 396.) The primary legislative objective is to create a system of property division upon dissolution of marriage that is more equitable than that which previously existed in this State. It is evident that the legislature recognized glaring inequitites in the earlier law and favored change. For instance, by giving both spouses an interest in “marital property” upon dissolution of marriage, the legislature sought to award economic credit in the distribution of property for indirect or domestic contributions to the accumulation of property and sought to replace the concept of post-marital support through alimony with one of post-marital stability through a just distribution of marital property and assets. Plaintiff acknowledges the legitimacy of such objectives, but contends that the objectives could have been attained by limiting the effect to property acquired after the effective date of the Act.

Had the legislature chosen to apply the concept of equitable distribution of property only to property acquired after the Act became effective, the full impact and purposes of the new act would not have been felt for at least a generation. (See Rothman v. Rothman (1974), 65 N.J. 219, 222-23, 320 A.2d 496, 498.) Such prospective application would continue the very inequity which the legislature sought to remedy and would place the present generation of married couples at a decided disadvantage in comparison with subsequent generations of married couples. Moreover, in each dissolution proceeding involving property, courts would be presented with the impracticable dilemma of applying, depending upon the acquisition date of any disputed property, differing sets of laws and policies.

On balance, we conclude that the State interest to be promoted by applying the section retrospectively greatly outweighs the asserted property interest, which is only slightly more impaired by such application. (Accord, Rothman v. Rothman (1974), 65 N.J. 219, 232, 320 A.2d 496, 503; Corder v. Corder (Mo. App. 1977), 546 S.W.2d 798, 804-05.) Therefore, section 503(b), applied retrospectively to property acquired prior to the effective date of the Act, does not deprive plaintiff of property in violation of the due process clauses of the Federal and State constitutions.

Finally, plaintiff contends that three provisions of the Act deny him equal protection of the law in that they invidiously discriminate against divorced parents. Section 503(d) provides:

“The court may protect and promote the best interests of the children by setting aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.” (Ill. Rev. Stat. 1977, ch. 40, par. 503(d)).

Section 510(c) establishes, in pertinent part:

“Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, except as otherwise provided herein, but not by the death of a parent obligated to support the child ***.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 40, par. 510(c).)

The relevant portion of section 513 states:

“The Court also may make such provisions for the education and maintenance of the child or children, whether of minor or majority age, out of the property of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. In making such awards, the court shall consider all relevant factors which shall appear reasonable .and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 40, par. 513.

Each of the provisions must be considered according to the well-established standards regarding equal protection of the laws under both the Federal and State constitutions. The legislature may differentiate between persons similarly situated as long as the classification bears a reasonable relationship to a legitimate legislative purpose. (McGowan v. Maryland (1961), 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101, 1105; S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 76.) Any statute reviewed under this standard is presumed to be constitutional despite the fact that, in practice, it may result in some inequality. (McGowan v. Maryland (1961), 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101, 1105.) The burden rests upon the person challenging the statute to negate the existence of any facts which may reasonably be conceived to sustain it. Schilb v. Kuebel (1970), 46 Ill. 2d 538, 549-50, aff'd (1971), 404 U.S. 357, 364, 30 L. Ed. 2d 502, 511, 92 S. Ct. 479, 484.

According to plaintiff, sections 503(d) and 513 permit a dissolution order to require divorced parents to allocate funds for the education of their children beyond the children’s minority, and he points out that such burden is not imposed upon nondivorced parents. Defendant’s first line of response is that nondivorced parents do have a coextensive legal obligation to provide for the education of their children beyond the minority of the children. He refers to the following statutory obligation which applies to nondivorced parents:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” (Ill. Rev. Stat. 1977, ch. 40, par. 1015.)

This court has not had occasion to consider whether the above-cited provision obligates nondivorced parents to fund the education of their majority aged children, and we have no occasion to do so here. Rather, we find that the imposition of such an obligation upon divorced parents is reasonably related to a legitimate legislative purpose.

It cannot be overemphasized that a divorce, by its nature, has a major economic and personal impact on the lives of those involved. That the legislature is cognizant of this is evident by the fact that an express purpose of the Act is to “mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.” (Ill. Rev. Stat. 1977, ch. 40, par. 102(4).) Commonly, a divorce means that the spouses wiE go their separate ways, live independent lives, and accrue additional expenses which they would not have had had the famEy remained united. Unfortunately, it is not the isolated exception that noncustodial divorced parents, because of such additional expenses or because of a loss of concern for children who are no longer in their immediate care and custody, or out of animosity directed at the custodial spouse, cannot be relied upon to voluntarily support the chEdren of the earlier marriage to the extent they would have had they not divorced. One appeEate court stated in ordering a divorced parent to contribute to the coEege education of his noncustodial child:

“In a normal household, parents *** direct their chEdren as to when and how they should work or study. That is on the assumption of a normal famEy relationship, where parental love and moral obhgation dictate what is best for the children. Under such circumstances, natural pride in the attainments of a child *** would demand of parents provision for a college education, even at a sacrifice.
When we turn to divorced parents — a disrupted family — society cannot count on normal protection for the child, and it is here that equity takes control to mitigate the hardship that may befall children of divorced parents.” Maitzen v. Maitzen (1959), 24 Ill. App. 2d 32, 38.

We might point out to plaintiff that sections 503(d) and 513 do not mandate that divorced parents must provide their children of majority age with funds for education in all cases. It is certainly a legitimate legislative purpose to minimize any economic and educational disadvantages to children of divorced parents. If parents could have been expected to provide an education for their child of majority age absent divorce, it is not unreasonable for the legislature to furnish a means for providing that they do so after they have been divorced. We have no hesitation, therefore, in concluding that it is reasonably related to that legitimate purpose for the legislature to permit the trial court, in its sound discretion, to compel divorced parents to educate their children to the same extent as might reasonably be expected of nondivorced parents. (Accord, Childers v. Childers (1978), 89 Wash. 2d 592, 601-05, 575 P.2d 201, 207-09.) Sections 503(d) and 513 do not violate the equal protection guarantees of the Federal and State constitutions.

As to section 510(c), plaintiff correctly represents that the obligation of a nondivorced parent to support a dependent child terminates upon that parent’s death, i.e., a nondivorced parent is free to disinherit a dependent child. Plaintiff urges that there is no rational basis for allowing nondivorced parents such freedom of testation while burdening the estates of divorced parents with child support obligations.

Two reasonable justifications are given by defendant for singling out divorced parents. First, though a non-divorced parent may disinherit a dependent child, he may not disinherit his family. The surviving parent may renounce the will of the deceased parent and demand a statutory forced share of the deceased parent’s estate. (Ill. Rev. Stat. 1977, ch. 110½, par. 2—8.) The forced share then becomes available for the support of the dependent child because the surviving parent remains obligated to support the child. In effect, a child of a nondivorced parent has some indirect security against the possible loss of support due to disinheritance. The dependent child of a divorced parent has no similar protection because a surviving divorced spouse is not entitled to a forced share of a former spouse’s estate. It is against the background of this inequity that section 510(c) was conceived. It seeks to protect the dependent child of divorced parents from loss of support through disinheritance, a loss from which a child of nondivorced parents is indirectly insulated. A divorced parent is still free to disinherit a child of his divorced marriage, subject only to the limited obligation of support. In balance, section 510(c) mitigates rather than aggravates inequality.

Second, while it is comparatively rare for a non-divorced parent to leave a spouse and their children out of a will, it is not so uncommon for a divorced parent to do so. (See Hornung v. Estate of Lagerquist (1970), 155 Mont. 412, 419, 473 P.2d 541, 545.) A divorced parent may establish a new family which may command primary allegiance in a subsequent will. The well-being of children of a former marriage may seem more remote to a noncustodial parent than the well-being of those children over whom that same parent has immediate care and custody. In addition, the divorced parent may harbor animosity toward a former spouse, which disposition might obscure the natural tendency to provide in a will for their mutual children. These are reasonable assumptions for the legislature to have made and assumptions which courts in other jurisdictions have countenanced. (See Grotsky v. Grotsky (1971), 58 N.J. 354, 358-60, 277 A.2d 535, 538-39; Bailey v. Bailey (1970), 86 Nev. 483, 488-89, 471 P.2d 220, 223; Franklin Life Insurance Co. v. Kitchens (1967), 249 Cal. App. 2d 623, 630-31, 57 Cal. Rptr. 652, 657; Morris v. Henry (1952), 193 Va. 631, 636-39, 70 S.E.2d 417, 420-21; In re Moore's Estate (1949), 34 Tenn. App. 131, 146-47, 234 S.W.2d 847, 854; Miller v. Miller (1874), 64 Me. 484, 487.) Plaintiff, in whom the burden resides to negate the plausibility of such assumptions, has not done so.

Moreover, the legislature need not protect all children equally from the possible loss of support due to disinheritance. It may provide a remedy or institute a reform in progressive stages, addressing itself to the phase of a problem which seems most acute at the time. (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489, 99 L. Ed. 563, 573, 75 S. Ct. 461, 465; Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 312-13.) We, therefore, hold that plaintiff has not satisfied the burden of showing that section 510(c) invidiously discriminates against divorced parents in defiance of equal protection.

For the reasons stated, we reverse the judgment of the trial court which declared unconstitutional sections 503(b), 503(d), 510(c), 513, 801(b), 801(c) and 801(d) of the Illinois Marriage and Dissolution of Marriage Act.

Judgment reversed.

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


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 49555.
    MINNIE FRANK, Appellee, v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA et al., Appellants.

      Opinion filed May 26, 1978.

      WARD, C.J., and KLUCZYNSKI, J., took no part.
    Bernard E. Epton, Lawrence A. Berman, Morris I. Liebman, Newton N. Minow, Henry L. Mason III, and Kirk B. Johnson, of Chicago (Epton & Druth, Ltd., and Sidley & Austin, of counsel), for appellants.
    Robert J. Peters, Arnold I. Shure, Anthony Hume, and Gerald White, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This is a class action suit seeking reformation of approximately 400,000 retirement-annuity contracts to include a cash-surrender provision. The circuit court of Cook County ordered, inter alia, that plaintiff give individual notice of the pendency of this action to all identifiable class members based on that court’s opinion that due process requirements necessitated such notice. The trial court additionally found its order requiring notice involved a substantial ground for difference of opinion, and that an immediate appeal on that issue would materially advance the ultimate termination of the litigation. Accordingly, that court identified the following question for interlocutory appeal pursuant to our Rule 308 (58 Ill. 2d R. 308):

“Whether due process of law under the 14th Amendment of the United States Constitution and Article 1, Section 2 of the Illinois Constitution, requires that Plaintiff in the case before this Court notify the absent members of the class of annuity contract holders whose contracts she seeks to have reformed of the pendency of this action.”

The trial court’s affirmative answer to this question was reversed by the appellate court, which found notice to be unnecessary under the circumstances. (47 Ill. App. 3d 821.) We allowed leave to appeal.

A full recitation of the facts and procedural history of this case is contained in the appellate court’s opinion. We summarize here only those facts necessary to our conclusion. Defendants, Teachers Insurance and Annuity Association of America (TIAA) and its companion organization, College Retirement Equities Fund (GREF), are nonprofit, limited-liability life insurers providing a nationwide retirement plan for approximately 500,000 employees of educational institutions and nonprofit research organizations. The aggregate assets of these plans, including contributions from both employees and employers, are approximately $5 billion.

Dr. Minnie Frank, the named plaintiff in this class action, purchased retirement-annuity contracts from TIAA and GREF for which she made premium payments totaling $976.06 to TIAA and $976.06 to GREF. These payments were matched by her employer, Chicago Medical School. It is clear from the TIAA and CREF contracts that it was not intended that the purchaser should have any right to surrender the contract for cash, and we do not understand plaintiff to dispute this.

Dr. Frank has not been employed by the Chicago Medical School or any other participating institution for several years, however, and, consequently, has not been a contributing member of the retirement plans during that period. In response to her inquiries concerning a cash-surrender value for her contracts, plaintiff learned from the companies of limited “annuity repurchase” options made available to those whose contracts had been in force 5 years or less or the repurchase values of which were $2,000 or less. Dr. Frank qualified under neither option. Thereafter, plaintiff’s attorney husband, Marvin Lustgarten,' filed this class action with his wife as the named plaintiff on behalf of the several hundred thousand persons holding contracts with the defendant insurance companies. It is alleged therein that this “secret” annuity-repurchase practice and an alleged practice of permitting certain institutional executives and other favored persons to surrender their contracts are discriminatory and violate the governing New York statutes. The complaint seeks reformation of the contracts of all class members so as to provide to them an otherwise unavailable full-cash-surrender option. Marvin Lustgarten later withdrew as counsel after the court suggested his presence might cause problems with the class action aspect of the case. See Stull v. Pool (S.D.N.Y. 1974), 63 F.R.D. 702; Hamer v. Board of Education (2d Dist. 1977), 52 Ill. App. 3d 531; Barliant v. Houghton Mifflin Co. (1st Dist. 1977), 45 Ill. App. 3d 494, and cases there cited.

The major thrust of defendants’ argument is that reformation of these contracts would substantially alter the retirement scheme contracted for by the defendants with the individual class members. Therefore, urge defendants, each individual class member is entitled to be notified of the pendency of this action in order that he may intelligently decide whether to participate in, oppose, or withdraw from this lawsuit. The no-cash-surrender concept is said by defendants to be a basic principle of the TIAA-CREF contracts. If 400,000 of these contracts are reformed, effectively offering all members the opportunity for cash surrender, it is urged that the validity of prior actuarial calculations will be impaired and the cost-benefit structure of the plan disrupted. It is argued that if the cash-surrender option were exercised by a significant number of contract holders, the resulting diminution in assets could jeopardize defendants’ ability to meet their obligations to the remaining members. Plaintiff responds that these arguments cannot be considered, for the record contains no proof of their validity.

This case has not, of course, been heard on its merits, and we indicate no opinion thereon. It is obvious, however, to even the untrained mind that there are substantial differences between a retirement system in which no right, or only a rather narrowly limited right, to withdraw contributions exists, and a system, such as that sought by plaintiff, in which the contributors may withdraw their contributions on demand. Similarly, it seems to us entirely possible, if not probable, that other members may not share plaintiff’s enthusiasm for an unlimited cash-surrender privilege, or may believe the remedy for discriminatory cash-surrender practices, if such practices exist, is to enjoin the companies from continuing them — to eliminate the practices completely rather than render them uniformly available.

These observations suggest serious questions regarding the adequacy of the representation which a plaintiff in the position of Dr. Frank offers to other members of the class who are still contributing participants or even annuitants in the retirement system, and whose interests and views may differ from, orbe opposed to, those of Dr. Frank. We do not, of course, now decide the issue of the adequacy of plaintiff’s representation, for it is not now before us for that purpose. Rather, we simply observe that these questions persist despite the trial court’s preliminary finding that plaintiff’s representation is adequate. It may well be, if this case proceeds as a class action to a hearing on the merits, that evidence will be introduced establishing the conflict suggested by defendants. Should this occur, the trial judge may wish to reconsider, at least as to those members with conflicting interests, his earlier finding that plaintiff’s representation was adequate. In that event the court may dismiss the class action or, depending on the proof, determine that plaintif can proceed as the representative of a smaller class composed of persons with more compatible interests. We do not mean to imply, however, that our holding as to the necessity of notice to all other contract holders would be vitiated by a reduction in the size of the class, should that occur.

Our purpose in mentioning this is to call to the attention of the trial courts the possibility of utilizing our Rule 308 as a means of reviewing and resolving the representational issue at an early stage of the proceedings as was done with the notice issue here. Where questions are raised as to adequacy of representation or the necessity of notice, and the trial judge believes evidence would be helpful in the resolution of those questions, we see no valid objection to requiring the parties to present such evidence before a finding and order are made on either question. And, if the trial court believes there to be “substantial ground for difference of opinion” (Rule 308) as to the correctness of his order, and that immediate appeal may materially advance ultimate disposition, an interlocutory appeal could then be sought. Since a named plaintiff, because of the cost, may not wish to prosecute the action if individual notice must be given to the members of a large class or if it cannot be prosecuted as a class action, an early, authoritative determination of those issues would, in some cases, seem desirable. See Forde, Class Actions in Illinois: Toward a More Attractive Forum For This Essential Remedy (1977), 26 De Paul L. Rev. 211, 231-33.

In his order requiring notice the trial judge stated:

“This Court is of the opinion that due process of law, as interpreted by the United States Supreme Court in Eisen vs. Carlisle & Jacquelin, 40 L. Ed. 2d 732, decided May 28, 1974, and in other cases, requires that Plaintiff, in the circumstances before this Court, inform the members of the class of contract holders she seeks to represent of the pendency of this action. Due process of law requires that these persons be given an opportunity to participate in or to withdraw from this lawsuit.” (Emphasis added.)

It is clear to us from the emphasized language that in reaching its conclusion regarding notice the trial court considered factors in this case which the appellate court did not.

As earlier noted, in the trial and appellate courts and here, defendants presented arguments relating to the potential conflict of interest between Dr. Frank and other class members. Specifically, it was alleged that plaintiff was not a typical class member because, in contrast to most class members, she was not relying upon the TIAA-CREF contract for her retirement income, she had ceased active participation in the program, and her sole interest in this suit was to surrender her contract in exchange for a cash payment. Defendants argued that these factors were important in determining whether the trial court was justified in requiring notice to the absent class members, while plaintiff urged they concerned only the issue of adequacy of representation and were therefore inappropriate in this interlocutory appeal. The appellate court agreed with the plaintiff and specifically refused to consider these factors in this appeal, which it regarded as limited to the notice issue. 47 Ill. App. 3d 821, 841.

In our judgment, the several aspects of class actions cannot be neatly compartmentalized and independently resolved. Questions relating to the adequacy of representation of the class by the named parties and their counsel, the necessity of notice to members of the class, and the determination of classes or subclasses, while viewed as separate considerations, all overlap to varying degrees. We believe the trial court’s consideration of all of the circumstances of the case before it was appropriate in determining whether the additional protection of notice was required by due process, and that the appellate court erred in focusing solely upon the cohesiveness of the class in reversing the trial court’s judgment.

Class action suits have long been recognized as exceptions to the general rule that absent parties may not be bound by a judgment in personam. (See, e.g., Hansberry v. Lee (1940), 311 U.S. 32, 40-41, 85 L. Ed. 22, 26-27, 61 S. Ct. 115, 117-18.) This exception is made possible by a requirement that the representative parties fairly and adequately protect the interest of the class. (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(3); Fed. R. Civ. P. 23(a)(4) (1966); see also Newberry Library v. Board of Education (1944), 387 Ill. 85.) As we noted in Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 338: “Absentee class members must be so represented that their rights will receive adequate protection.” The Supreme Court in Hansberry put it thus:

“It is one thing to say that some members of a class may represent other members in a litigation where the sole and common interest of the class in the litigation is either to assert a common right or to challenge an asserted obligation. [Citations.] It is quite another to hold that all those who are free alternatively either to assert rights or to challenge them are of a single class, so that any group merely because it is of the class so constituted, may be deemed adequately to represent any others of the class in litigating their interests in either alternative. Such a selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed to represent, does not afford that protection to absent parties which due process requires. The doctrine of representation of absent parties in a class suit has not hitherto been thought to go so far.” (311 U.S. 32, 44-45, 85 L. Ed. 22, 28-29, 61 S. Ct. 115, 119-20.)

But adequate representation is not the sole touchstone of due process. There can be threshold findings of adequate representation with notice nevertheless required as a matter of due process to allow members of the class their constitutional opportunity to be heard. This is not to suggest, however, that notice can ever cure otherwise inadequate representation.

To the degree there is cohesiveness within the class, the need for notice to absent members will, of course, tend toward a minimum. But, if there exist questions as to the adequacy of representation, as here, or the propriety of adjudicating the dispute on a class action basis, notice may not only be appropriate, it may well be constitutionally required. (See Schroeder v. City of New York (1962), 371 U.S. 208, 9 L. Ed. 2d 255, 83 S. Ct. 279 (condemnation proceedings); Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (representative accounting action). Cf. Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (class actions under Federal Rule of Civil Procedure 23(b)(3)).) In fact, the maintenance of a class action, as well as the determination of a class, may be conditioned upon the additional requirement that notice be given. Ill. Rev. Stat. 1977, ch. 110, pars. 57.3, 57.4.

Much of the discussion during the litigation of this case has been devoted to the opinion of the United States Supreme Court in Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140. In that case, the plaintiff brought suit against defendant brokerage firms attacking the practice of charging an additional fee for odd-lot transactions as violative of securities and antitrust laws. He sought relief on behalf of individuals who had traded odd lots during a specified period. The Supreme Court held that since the suit was a class action under Federal Rule of Civil Procedure 23(b)(3), individual notice to all reasonably identifiable class members was required. 417 U.S. 156, 174-78, 40 L. Ed. 2d 732, 746-49, 94 S. Ct. 2140, 2150-52.

While the courts, and also the parties here, differ as to whether the result in Eisen was predicated upon Federal Rule 23(c)(2) (Fed. R. Civ. P. 23(c)(2) (1966)), or based upon due process considerations, this court has recognized that although “notice to absent class members as it relates to. due process was discussed in Eisen, that constitutional requirement was not the basis of the Eisen decision.” (People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 311.) But the frequent references to due process considerations in Eisen, as well as the comments of the advisory committee, indicate that Rules 23(b)(3) and 23(c)(2), regarded by the court as requiring notice, were thought to have stemmed from due process considerations. We also noted in Wilcox, however, that due process does not require individual notice to every member of the class in all circumstances. 61 Ill. 2d 303, 312. See also Wetzel v. Liberty Mutual Insurance Co. (3d Cir. 1975), 508 F.2d 239, 255-57, cert. denied (1975), 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415.

We pause here to note that Illinois now has a recently enacted class action statute which became effective following the judgment of the trial and appellate courts in this case. (Ill. Rev. Stat. 1977, ch. 110, par. 57.2 et seq.) In Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 337, we held that statute procedural in nature and therefore applicable to pending litigation. The statute includes a specific provision regarding notice:

“Sec. 57.4 Notice in class actions. Upon a determination that an action may be maintained as a class action, or at any time during the conduct of the action, the court in its discretion may order such notice that it deems necessary to protect the interests of the class and the parties.
An order entered under paragraph (a) of Section 57.3 determining that an action may be maintained as a class action, may be conditioned upon the giving of such notice as the court deems appropriate.” (Ill. Rev. Stat. 1977, ch. 110, par. 57.4.)

The statute, of course, does not purport to define the circumstances requiring notice. Rather, it provides for discretionary notice in circumstances where the court considers notice desirable but not compelled by due process requirements.

Since Steinberg held the act applicable to pending litigation, this appeal could, conceivably, be resolved by simply holding that in requiring notice the trial judge did not abuse the discretion vested in him by the statute. The difficulty with that disposition is that, as earlier noted, the trial judge did not view his action as an exercise of discretion — in his opinion notice was constitutionally required by the circumstances of this case. Were we to disagree, remandment would be necessary to afford the trial court an opportunity to evaluate the notice issue in a discretionary context. Consequently, we have considered the issues in the context of due process requirements.

Since our concern here is with the constitutional rather than the statutory requirements, we do not regard as particularly helpful an analysis of the multitude of cases dealing with Rule 23 of the Federal Rules of Civil Procedure governing class actions in the Federal courts. Due process considerations come into play, of course, because in class action litigation all members of the class are bound by the result. Where it is apparent that there may be differing interests among class members or differing opinions as to the desirability of the relief requested in the complaint, those persons who may object have a right to be notified of its pendency so that they may take such action as they deem appropriate to the protection of their interests.

In the case before us the individual members of the class and their addresses are readily identifiable from defendants’ records. By her complaint, allegedly brought on behalf of several hundred thousand of the annuity-contract holders, Dr. Frank seeks to change the refund provisions of contracts providing what may well be the principal source of retirement income for many of those individuals. Because no proof has been heard, the potential ramifications of those changes cannot now be known with certainty. What is in our opinion certain is that given the potential conflict of interest between the named plaintiff and many others in the class, the possible adverse consequences to those others of the contract changes sought in this action, and the availability of their names and addresses, due process requirements as interpreted in Eisen, Schroeder, Múlleme and Hansberry will tolerate no less than the individual notice ordered by the trial court.

Accordingly, the judgment of the appellate court is reversed, the order of the circuit court requiring notice to the absent class members is affirmed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion and our class action statute.

Appellate court reversed; circuit court affirmed; cause remanded, with directions.

WARD, C.J., and KLUCZYNSKI, J., took no part in the consideration or decision of this case.


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 49685.
    PATRICIA L. GARCIA et al., Appellants, v. THOMAS TULLY, County Assessor, et al., Appellees.

      Opinion filed May 26, 1978.

      CLARK and KLUCZYNSKI, JJ., took no part.
    Richard Orlikoff, Robert J. Peters, and Randolph K. Blomberg, of Chicago, for appellants.
    Kirkland & Ellis, of Chicago (Don H. Reuben, John E. Angle, and Samuel Fifer, of counsel), for appellee.
    Robert S. Atkins, of Freeman, Atkins & Coleman, Ltd., of Chicago, for amicus curiae Illinois Press Association.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Patricia L. Garcia, Robert Paddock, Philip Bash, The Paddock Corporation, Shepherd Publications, Inc., and Myers Publishing Co., appealed from the order of the circuit court of Cook County dissolving a preliminary injunction under which defendants, Thomas Tully, county assessor, and the president and members of the board of commissioners, and Edward J. Mulville, county purchasing agent of Cook County, and Area Publications Corporation, hereafter Area, were enjoined from contracting to publish certain personal property and real estate tax assessment lists in the Suburban Trib. In its order dissolving the preliminary injunction the circuit court found that there was no just reason to delay enforcement or appeal. (Supreme Court Rule 304(a), 58 Ill. 2d R. 304(a).) Although the order does not so state, citing to the memorandum opinion filed by the circuit court prior to the entry of its order, plaintiffs assert that the effect of the order dissolving the injunction was to hold unconstitutional section 104 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 585) and that under Rule 302(a) (58 Ill. 2d R. 302(a)) the appeal lay directly to this court.

Section 104 of the Revenue Act of 1939 provides that in counties containing 2 million or more inhabitants the county assessor shall publish the assessments of personal property, the quadrennial assessments of real property and, in years other than years of a quadrennial assessment, a full and complete list of the assessments in which changes are made. It further provides:

“In such counties, or assessment districts therein, the publication of the assessments of personal property and real estate or the changes therein required in this Act to be published, shall be printed in some newspaper or newspapers of general circulation published in the county except that, in every township or incorporated town which has superseded a civil township, in which there is published one or more newspapers of general circulation, the assessment list of such townships shall be published in one of such newspapers and in cities of more than 2,000,000 population the assessment list of such city shall be printed in one or more newspapers of general circulation published in the township assessment district within such city or, in the event a newspaper of general circulation is not published within such township assessment district, in one or more newspapers of general circulation published within such city.” 111. Rev. Stat. 1975, ch. 120, par. 585.

It appears from the pleadings and an “agreed statement of uncontested facts” that each of the corporate plaintiffs is the publisher of a newspaper published in either Barrington, Palatine or Hanover Townships in Cook County; that each of the individual plaintiffs is a resident of and taxpayer in one of these townships and is also either an officer or employee of one of the corporate plaintiffs; that Life Printing and Publishing Co., Inc., not a party to this cause, publishes The Berwyn Life, a newspaper with an average press run of 13,500 copies, all of which are circulated in Berwyn Township; that Barrington Press, Inc., also not a party to this cause, publishes the Barrington Courier Review, circulated generally in Barrington Township; that defendant Area is a wholly owned subsidiary of the Chicago Tribune Company and is the owner and publisher of the Suburban Trib, which is published under nine names (e.g., Suburban Trib-Northwest Cook County, Suburban Trib-West Cook County, etc.); that approximately 343,000 copies of the Suburban Trib are circulated with the Chicago Tribune in Lake, Cook, Du Page and portions of Kane and Will Counties; that the Suburban Trib-Northwest Cook County is circulated three times each week with the Chicago Tribune in Barrington, Hanover and Palatine Townships and that approximately 53,000 copies of each issue are so circulated; that the Suburban Trib-West Cook County is published three times each week and approximately 32,000 copies of each issue are circulated in Berwyn Township, also with the Chicago Tribune; that there are approximately 30 annual subscriptions to the Suburban Trib and these subscribers receive their copies by mail; that the Suburban Trib is printed in Hinsdale or Des Plaines and copies are distributed to newspaper dealers who place copies within the Chicago Tribune to be delivered to homes during the morning hours of the day of publication; that copies of all editions of the Suburban Trib can be purchased by the public after 9 a.m. on the date of issue and thereafter, at Area’s office in Hinsdale for 10 cents per copy; that except within a copy of the Chicago Tribune no copies of the Suburban Trib are delivered to any person residing in Hanover, Berwyn, Barrington or Palatine Townships; that the Finance Committee of the board of commissioners recommended to the board that the 1976 personal property tax assessment lists for the townships of Barrington, Berwyn, Hanover and Palatine, the changes made in connection with the 1976 real estate assessment lists in the nonquadrennial township of Hanover, and the 1976 real estate quadrennial assessment list for the township of Barrington be published in the Suburban Trib, upon acceptance of the bid of the defendant Area.

Prior to consideration of the substantive issues briefed and argued by the parties we consider first defendant Area’s contention that this court is without jurisdiction to hear this appeal and that it should be dismissed. Defendants argue that because the appeal is not taken from a “final judgment” of the circuit court it may not, under Rule 302(a),'be taken directly to this court. Article VI, section 4, of the Constitution of 1970 provides for a direct appeal when a death sentence has been imposed and that “The Supreme Court shall provide by rule for direct appeal in other cases.” This court has jurisdiction to permit a direct appeal from other than “final judgments.” Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill. 2d 87.

The order dissolving the preliminary injunction was an interlocutory order appealable as a matter of right (Supreme Court Rule 307, 58 Ill. 2d R. 307), and upon motion filed pursuant to' Ride 302(b) (58 Ill. 2d R. 302(b)) the appeal could be taken directly to this court. What effect, if any, the addition of the finding, apparently in an attempt to comply with Rule 304(a), that there was no just reason for delaying enforcement or appeal had on the order entered by the circuit court we need not and do not decide. Although the procedural route followed is not clearly delineated, it appears from the opinion and order of the circuit court that the order dissolving the injunction rests upon the finding that section 104 of the Revenue Act of 1939 is unconstitutional. Under these circumstances, direct appeal under Rule 302(a) is appropriate, and defendants’ motion to dismiss the appeal is denied.

Plaintiffs contend that in holding section 104 of the Revenue Act unconstitutional the circuit court erred; that the publication and printing of tax-assessment notices is a proper subject of regulation by the State; and that the Suburban Trib is not a newspaper qualified either to publish tax notices in Illinois or in any of the four townships here involved. Defendant Area contends that section 104, as applied to its newspapers, is unconstitutional; that the Suburban Trib is in fact nine separate newspapers, each of which is a newspaper of general circulation within the meaning of the statute, and that two of the Suburban Tribs, the West County and Northwest County editions, are, within the meaning of the statute, published in these townships. The county defendants have appeared but have not filed a brief or taken a position on the merits of the appeal. They have filed a statement to the effect that if the order of the circuit court is affirmed the county will continue to accept bids from Area for the printing of tax-assessment lists. They ask, however, that in the event this court reverses the order of the circuit court it declare “that the validity of previously published tax assessment lists is in no way impaired, and that the taxes connected to those lists are legal.”

Illinois Press Association, amicus curiae, arguing that “the well established statutory legal notice system is fair and reasonable and should not be destroyed” and that the section under attack is constitutional, urges reversal of the order.

For the obvious reason that unless section 104 of the Revenue Act of 1939 is constitutional the other issues are no longer material, we consider first the question of its validity. Defendant Area contends that the statute is unconstitutional on two grounds: first, that the assessment lists are speech protected by the first amendment to the United States Constitution; and second, that it must be held invalid for the reason that “in its proposed application here it does not serve a logically compelling State interest.” It is the position of plaintiffs that the publication of tax-assessment notices is not speech protected by the first amendment and, assuming, arguendo, that such notices are a form of commercial speech, dissemination of such notices may be regulated without violating the first amendment.

Starting from the premise that a newspaper’s decision to accept or reject an item of paid advertising is a decision protected by the first amendment, Area argues that “any intrusion by the court or the legislature into that process bears the strongest presumption against its validity the law can recognize;” We have examined the authority upon which this argument is based (Miami Herald Publishing Co. v. Tornillo (1974), 418 U.S. 241, 41 L. Ed. 2d 730, 94 S. Ct. 2831) and are unable to perceive any resemblance between the issue involved there and that presented here. Our review of the authorities cited by Area (Bigelow v. Virginia (1974), 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222; Pittsburgh Press Co. v. Pittsburgh Com. on Human Relations (1973), 413 U.S. 376, 37 L. Ed. 2d 669, 93 S. Ct. 2553; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817) fails to reveal any support for its argument that the provisions of section 104 in any manner impinge upon its first amendment rights. The Supreme Court has rejected the contentions that applying the Fair Labor Standards Act to a newspaper-publishing business abridged the freedom of press guaranteed by the first amendment (Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 192-93, 90 L. Ed. 614, 620, 66 S. Ct. 494, 497-98) and that the first amendment precluded application of the Sherman Act to a newsgathering organization (Citizen Publishing Co. v. United States (1969), 394 U.S. 131, 22 L. Ed. 2d 148, 89 S. Ct. 927). It is also established that a newspaper may be subjected to nondiscriminatory forms of general taxation. (Grosjean v. American Press Co. (1936), 297 U.S. 233, 250, 80 L. Ed. 660, 668, 56 S. Ct. 444, 449; Murdock v. Pennsylvania (1943), 319 U.S. 105, 112, 87 L. Ed. 1292, 1298, 63 S. Ct. 870, 874.) Section 104 in no manner limits Area’s right to publish the tax lists in question — it prescribes certain qualifications which must be met in order that a newspaper, for compensation, be. eligible to publish them. We have considered Area’s argument that its right to publish the tax lists is “meaningful” only when coupled with the corresponding right to be compensated therefor, and we do not agree. The guarantees contained in the first amendment prohibit the abridgement of freedom of the press which we do not construe to include the right, absent the statutorily prescribed qualifications, to publish the tax notices in question. Assuming, arguendo, that there is here involved a right guaranteed by the first amendment, in our opinion the provisions of section 104 fall within the permissible bounds of time, place and manner restrictions on commercial speech (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817) and are not violative of the first amendment.

Defendant Area contends “that section 585 [104] in its proposed application does not serve a logically compelling State interest” and “that any restriction on First Amendment rights must be narrowly drawn and no greater than necessary to achieve a legitimate governmental interest.” The argument presumes that section 104 purports to impose a restriction on a first amendment right, thus creating a “suspect classification” and invoking the rule that in order to sustain its validity the State bears the burden of showing that the classification was related to some compelling State purpose. We do not agree that the statute imposes any restriction on a first amendment right. The question whether section 104 is violative of the equal protection clause is to be decided on the basis of whether the classification is rationally related to a legitimate governmental objective, and the burden is on Area to prove that it is arbitrary and invalid. Whether the course chosen by the General Assembly to achieve a desired result is either wise or the best means available is not a proper subject of judicial inquiry. (Schreiber v. County of Cook (1944), 388 Ill. 297; Stewart v. Brady (1921), 300 Ill. 425.) If there is a reasonable basis for the classification and it bears a reasonable and proper relation to the purposes of the Act, the classification is not unreasonable. Williams v. City of Chicago (1977), 66 Ill. 2d 423; People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572; Crews v. Lundquist (1935), 361 Ill. 193.

The obvious reason for the statutory requirement of publication in a newspaper published in the township is that the tax lists were thus most likely to be seen by the taxpayers affected. In In re Monrovia Evening Post (1926), 199 Cal. 263, 248 P. 1017, holding valid a statute which required that a legal notice appear only in newspapers of general circulation which were both printed and published in the State, city, or county wherein the offered advertising was published, the Supreme Court of California said: “The very purpose of requiring the publication of official notices is to inform the people concerning proceedings of a public nature for their general welfare. It appears reasonable to require such notices to be published in newspapers having a fixed and permanent domicile and a substantial circulation at the city or place where the inhabitants live who are most vitally interested in the transactions respecting which notices are required. At least, it is not unreasonable to expect the citizens of a particular community to rely upon their local newspaper primarily to inform them of the proceedings of their own local officers and the affairs of local public importance. No doubt it is on this theory that the legislature has seen fit to require such official advertising to be done only in newspapers of general circulation, both printed and published in the place where such notices are given or made.” (199 Cal. 263, 269, 248 P. 1017, 1020.) We hold that section 104 of the Revenue Act is not violative of the equal protection clause of either the Constitution of the United States or the Illinois Constitution of 1970.

We consider next whether within the meaning of section 104 of the Revenue Act of 1939 the Suburban Trib-West Cook County is published in Berwyn Township and the Suburban Trib-Northwest Cook County is published in the townships of Barrington, Palatine and Hanover. The statute provides that the assessment lists for the townships in which there is published one or more newspapers of general circulation shall be published in one of such newspapers. It is Area’s position that publication occurs when the newspapers are delivered or issued to the reading public, and that because the newspapers become available simultaneously throughout the whole of the area in which they are distributed, including these four townships, the papers are published in those townships and the requirements of section 104 are satisfied. There are a great many statutes which provide for publications in newspapers, and an examination of their provisions (e.g., Ill. Rev. Stat. 1977, ch. 24, par. 9 — 3—44; ch. 32, par. 157.84; ch. 34, par. 2713; ch. 42, par. 3 — 6; ch. 46, par. 4 — 7; ch. 77, par. 14; ch. 100, par 2; ch. 105, par. 4 — 4; ch. 110, par. 14) demonstrates that the General Assembly intended that a distinction be made between the “publication” of a newspaper and its “general circulation.” The narrow question presented by Area’s contention is whether simultaneous circulation is the statutory equivalent of publication.

In Polzin v. Rand, McNally & Co. (1911), 250 Ill. 561, the court held invalid section 6 of the textbook act of 1909 (Hurd’s Rev. Stat. 1909, ch. 122, par. 519), which in pertinent part provided that prior to adopting school textbooks for use in their respective districts boards of education were required to advertise for bids “in one or more newspapers of general circulation published in the city or district.” A stipulation of facts showed that there were no newspapers published in 11,198 of the 11,820 school districts in the State. The court rejected the contention that the statute should be construed to hold that “circulated” in the district complied with the requirement that the newspaper be published in the district. The court went on to say: “We apprehend no one would contend that it was intended to authorize advertisement in a newspaper circulated, but not published, in a district in which there was a newspaper of general circulation published. Yet if the act is construed as appellant contends for, we see no reason why the advertisement could not be published in any newspaper published outside the district but of general circulation in the district, although there might be one or more newspapers published in the district. A newspaper is of general circulation when it circulates among all classes and is not confined to a particular class or calling in the community. (Railton v. Lauder, 126 Ill. 219.) Chicago and St. Louis papers have a general circulation in many cities and school districts throughout this State and papers published in other cities and States circulate in Chicago, but the legislature could not have intended that boards of education of Springfield or Cairo could advertise for bids in Chicago or St. Louis newspapers. The language of section 6 is too plain and explicit to admit of the construction contended for by appellant. If it had been intended that publication in a newspaper of ‘general circulation’ in the district should be a compliance with the law, the legislature would not have required that the publication be made not only in a newspaper of general circulation in the district, but also in a newspaper ‘published’ in the district. By the word ‘published’ is cléarly meant the place where the newspaper is first issued or printed, to be sent out by mail or otherwise.” 250 Ill. 561, 574-75.

In People ex rel. O’Connell v. Read (1912), 256 Ill. 408, an appropriation ordinance for the village of Morgan Park had been published in a newspaper called The Post. The statute then in force and effect provided that appropriation ordinances were to be published within one month after enactment in a newspaper “published in the city or village” (256 Ill. 408, 410) and if no such newspaper was published, by the posting of notices in public places. The record showed that The Post was published weekly “in the interest of Morgan Park, Blue Island, and the entire country along the Blue Island ridge, in Chicago, by the Post Co.” (256 Ill. 408, 410.) The court held that there had been no compliance with the statute because the paper was not published within the village.

In support of its position Area cites an opinion of the Attorney General (1958 Ill. Att’y Gen. Rep. 227) interpreting the provisions of section 103 of the Revenue Act of 1939 (Ill. Rev. Stat. 1957, ch. 120, par. 584). Editions of the Southern Illinois an, printed in Carbondale in Jackson County, were released for general circulation in that city at the same time that they were prepared for delivery to Herrin in Williamson County and Murphysboro in Jackson County. The Attorney General expressed the opinion that the Southern Hlinoisan was equally “published” in all three cities and was therefore eligible to publish the assessment lists for Williamson County. We need not and do not decide the correctness of the opinion of the Attorney General, which is based upon a factual situation clearly distinguishable from that presented here. The address at which Area maintains its principal place of business is in Hinsdale in Du Page County and apparently after 9 a.m. on publication days that is the only place where copies of the Suburban Trib may be purchased. In view of what we find to be the clearly drawn statutory distinction between a newspaper’s being “published” and “circulated,” we hold that simultaneous circulation of Area’s newspapers in the townships involved does not serve to make them newspapers published within the township within the contemplation of section 104.

In view of our conclusion we do not reach the questions whether within the meaning of section 104 of the Revenue Act of 1939, the Suburban Trib-West Cook County is a newspaper of general circulation in Berwyn Township, and the Suburban Trib-Northwest Cook County is a newspaper of general circulation in the townships of Barrington, Palatine and Hanover.

This record contains a comprehensive agreed statement of facts, and it does not appear that any useful purpose would be served by remanding this cause for further hearing. (Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill. 2d 87.) The preliminary injunction dissolved by the order from which plaintiffs appealed enjoined only the publication in the Suburban Trib of the 1976 tax-assessment lists for the townships of Hanover, Palatine, Berwyn or Barrington. Since the statutory period during which such lists could be published has long since passed, the reversal of the order and issuance of an injunction at this time would be meaningless. Concerning future publications of the tax lists here sought to be enjoined, it cannot be determined from the agreed statement of facts that the factual situation has continued without change subsequent to the time involved in this proceeding. Under the circumstances the order dissolving the injunction is vacated and the cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

We have considered and now deny the request of the county defendants that in the event we reverse the order of the circuit court we hold “that the validity of previously published tax assessment lists is in no way impaired, and that the taxes connected to those lists are legal.” The question of the validity of the taxes is not now before us for decision.

Order vacated; cause remanded.

CLARK and KLUCZYNSKI, JJ., took no part in the consideration or decision of this case.