text:
    (No. 52772.
    JIM SEIBER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ralph Schuyler Jones, Appellee).

      Opinion filed September 29, 1980.

      GOLDENHERSH, C.J., took no part.
    William C. Evers III, of Collinsville, for appellant.
    Michael A. Katz, of Collinsville, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In proceedings under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), an arbitrator for the Industrial Commission found that claimant, Ralph Schuyler Jones, had failed to prove that he sustained accidental injuries arising out of and in the course of his employment with respondent, Jim Seiber, doing business as Seiber Sanitation and Hauling, and the arbitrator denied the claim for compensation. On review, the Commission set aside the decision of the arbitrator and awarded claimant compensation of $100.90 per week for a period of 5 6/7 weeks for temporary total disability and $4,069.25 for reasonable medical expenses incurred. On certiorari, the circuit court of Madison County confirmed the decision of the Industrial Commission. Respondent appealed to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)). Respondent argues that the decision of the Industrial Commission is against the manifest weight of the evidence.

In the proceedings before the arbitrator, claimant testified that on May 22, 1976, he was employed by respondent as a helper on respondent’s sanitation truck. His responsibilities as a helper included lifting 20-gallon cans of trash and emptying them into respondent’s truck. At approximately 8 or 9 a.m. on that day, while lifting a 20-gallon can of trash, claimant felt a sharp pain in his back. During the day this pain progressively increased, and claimant eventually left his job to seek medical attention. He did not state the approximate time that he left. Prior to leaving, claimant asked the driver of the truck to inform respondent that he had left work to consult a physician. Several days later he was hospitalized at St. Elizabeth’s Hospital in Belleville. He remained in the hospital for approximately one week and was discharged in an improved condition. He subsequently returned to the hospital with complaints of pain in his lower back and was readmitted for a period of approximately three weeks. The records of treatment introduced by claimant indicate that he was first hospitalized from May 28 through June 6, 1976. His second hospitalization began on June 7 and continued through July 2, 1976. Claimant admitted that he did not discuss his alleged accidental injury with respondent. He stated, however, that a friend named Roy spoke to respondent concerning payment of his medical expenses immediately following his first hospitalization. Claimant stated that he had not worked since May 22, 1976, that he was currently enrolled in a State employment rehabilitation program, and that he continued unable to lift heavy objects. He elaborated that the extent of his lifting activity has been limited to carrying “a sack of rabbit feed.” He stated that he did not return to his position at Seiber Sanitation and Hauling because he preferred not to continue working for respondent.

On cross-examination, he stated that he was collecting refuse in the vicinity of Hollywood Heights Road when he first noticed pain in his back. He could not remember the name of the driver of the truck. He did, however, identify an individual sitting in the hearing room as the driver on this occasion. This individual later testified and identified himself as James Hubbard. Claimant reiterated that he had informed Hubbard of his condition and had requested that Hubbard inform respondent that he was leaving work to consult a physician. Prior to leaving work, claimant spoke to both respondent and his wife. He believed that he had informed Mrs. Seiber that his back was injured, but he did not discuss the circumstances of the alleged injury. He did not discuss this matter with respondent. When he returned home on May 22, 1976, his family physician was notified, and claimant was subsequently examined by him. The date of this examination is not disclosed in the record. Claimant was treated in the emergency room of Memorial Hospital on May 27, 1976. At this time he informed the hospital staff that he had sustained an injury at work approximately one week prior to his visit. Claimant was then referred to Dr. Paul P. Meirink. It was stipulated that claimant first saw Dr. Meirink on May 28, 1976. On this occasion he informed Dr. Meirink that his condition occurred three days prior to the examination. Claimant denied that his reason for leaving work was that he was angry about some matter related to his employment. He acknowledged that he resided across the street from respondent and again stated that he had never personally notified respondent of his alleged accidental injury. Claimant admitted that he had been involved in a fight subsequent to his injury and stated, “I hit some guy with a garden hoe. That was all there was to it.” In addition, he stated that the rabbit feed bags to which he referred on direct examination weighed approximately 25 pounds and he expressed his doubt that he had carried more than one bag at a time.

The deposition of Dr. Meirink, a board certified orthopedic surgeon, was introduced into evidence by claimant. Dr. Meirink stated in his deposition that he examined claimant on May 28, 1976, at the request of Dr. Harry Parks, claimant’s family physician. Claimant related a history of injury to his back while loading trash at his job and indicated that the injury occurred three days prior to the examination. Dr. Meirink diagnosed claimant’s condition as spondylolysis with first-degree spondylolisthesis at L-5. Claimant was hospitalized at St. Elizabeth’s Hospital, where a conservative treatment program was followed. This treatment included administration of a series of “epidural blocks.” Dr. Meirink elaborated that the administration of epidural blocks is a mode of treatment which involves the injection of a steriod into the dura layer covering the spinal cord. He stated that claimant responded well to this therapy and that he was discharged from the hospital with instructions to wear a lumbosacral corset and to avoid heavy lifting. Claimant was subsequently readmitted to the hospital on June 6, 1976, and a conservative treatment plan was again utilized. Upon discharge from the hospital on July 2, 1976, claimant was advised to avoid heavy physical labor and was referred to the Department of Vocational Rehabilitation for sedentary job training. Dr. Meirink also examined claimant on August 6, 1976. At this time claimant stated that he felt “100% better,” and Dr. Meirink reported that the results of this examination were all within normal limits. In addition, Dr. Meirink testified that, based upon a reasonable degree of medical and surgical certainty, he believed claimant’s condition might or could have been related to his employment. He stated that, at a minimum, claimant’s condition was an aggravation of a preexisting condition.

On cross-examination, Dr. Meirink stated that claimant’s spondylolysis, a condition which he described as the formation of scar tissue in areas of a claimant’s spine which would normally consist of bone, was a congenital defect. He stated that claimant’s spondylolisthesis, a condition which involves slippage of vertebrae, could be caused by repeated trauma. In addition, Dr. Meirink stated that an individual who suffered from this condition would typically experience a great deal of pain; he might, however, be able to continue working immediately following the onset of the condition. On redirect examination, Dr. Meirink reiterated that it was his opinion, based upon a reasonable degree of medical and surgical certainty, that claimant’s condition was causally related to his employment.

Respondent called James Hubbard, previously employed as a truck driver by respondent. Hubbard testified that he worked with claimant on claimant’s last day of employment with respondent. Hubbard stated that he was not aware of anything unusual happening to claimant, that he did not notice claimant experience difficulty in lifting, and that, to his knowledge, claimant had not been injured while working. Claimant had asked Hubbard to inform respondent that he was leaving work because he felt sick. Hubbard stated, however, that claimant gave as his reason for leaving that he was suffering from a cold. In addition, Hubbard stated that they collected refuse in the vicinity of Hollywood Heights Road at some time in the afternoon.

On cross-examination, Hubbard stated that he was uncertain as to the date of claimant’s last day of work and that claimant had been emptying 20-gallon trash cans that morning. In addition, he stated that, while claimant was working, he was driving the truck and therefore unable to observe him.

Mrs. Irma Seiber, wife and employee of respondent, was the next witness called. She testified that she had spent approximately 30 minutes with claimant on the day that he was allegedly injured. She stated that during this period claimant did not mention any injury, but he did state that he felt like quitting because he did not like working with Hubbard.

James Seiber, respondent, was called as a witness and testified that neither claimant nor anyone on claimant’s behalf had notified him that claimant had sustained an accidental injury. He confirmed the fact that claimant resided across the street and added, “[I] t is 47 feet 7 inches to my driveway.” In addition, he stated that, since the alleged accident, he had seen claimant carrying groceries, fixing an outdoor television antenna, and carrying two bags of rabbit feed, one under each arm.

On cross-examination, respondent identified two documents that he had received from Memorial Hospital. The first was a statement requesting payment for outpatient diagnostic 'services provided to claimant at Memorial Hospital. This document, dated May 27, 1976, indicated that claimant’s condition was employment related. The second document was a letter from Memorial Hospital requesting confirmation that claimant’s treatment would be paid for through a workmen’s compensation program. Respondent stated that he called the hospital and denied that claimant had been injured on the job. In addition, he stated that within approximately one week after the accident he was aware that claimant was complaining of a job-related injury but that claimant did not tell him.

At the close of the evidence presented by the parties, the arbitrator asked claimant why he did not discuss his alleged accidental injury with respondent. Claimant stated that he believed that it would be better not to discuss the matter with respondent, adding that he preferred to avoid “a big argument.”

Respondent argues in this court that the decision of the Industrial Commission is against the manifest weight of the evidence. Respondent principally contends that claimant’s testimony was so thoroughly contradicted that it alone is insufficient to support an award of compensation. In the alternative, respondent argues that the cause was barred by claimant’s total failure to provide notice of the alleged accident. We will first address respondent’s argument concerning notice of the accident.

Section 6(c) of the Workmen’s Compensation Act provides in relevant part:

“Notice of the accident should be given to the employer as soon as practicable, but not later than 45 days after the accident, and if the Commission shall find that the failure to give such notice within 45 days substantially prejudiced the rights of the employer, the Commission in its discretion, may order that the right of the employee to proceed under this act shall be barred.
* * *
No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c).)

The purpose of the notice requirement is to enable the employer to investigate the alleged accident. (Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 143.) Compliance with the requirement is accomplished by placing the employer in possession of the known facts related to the accident within the statutory period. Fenix-Scisson Construction Co. v. Industrial Com. (1963), 27 Ill. 2d 354, 357.

In the present case, claimant’s application for adjustment of claim had been filed with the Commission on June 23, 1976, approximately one month after the date of the alleged accidental injury. Respondent admitted that within one week of the alleged accidental injury he was aware of the fact that claimant was complaining of an employment-related injury. Respondent also acknowledged receipt from Memorial Hospital of a request for payment for treatment and a request for confirmation that the expense of treatment would be covered by a workmen’s compensation plan. Both of these documents were admittedly received within the limitations period allotted to provide notice.

We cannot agree with respondent that claimant failed to provide notice of the accident as required by the Act. In construing similar provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 102), we have held that the filing of a complaint within the statutory period allotted to provide notice satisfied the notice requirement of the Tort Immunity Act. (Dunbar v. Reiser (1976), 64 Ill. 2d 230, 237.) We conclude that the purpose of the notice requirement of section 6(c) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c)), to enable the employer to investigate the alleged accident, is satisfied by the filing of an application for adjustment of claim within the period allotted to provide notice. We therefore hold that claimant has satisfied his statutory obligation to provide notice of the accident in the instant case.

Respondent next contends, relying principally upon Caterpillar Tractor Co. v. Industrial Com. (1978), 73 Ill. 2d 311, that claimant’s testimony was so thoroughly contradicted in the proceedings below that it, standing alone, was insufficient to support an award of compensation. Respondent concedes that it is primarily the function of the Commission to determine disputed questions of fact, but he argues that questions of credibility should be left to the arbitrator.

We agree with respondent that the burden is upon the

party seeking to prove by a preponderance of credible evidence the elements of his claim, particularly the prerequisite that the injury complained of arose out of and in the course of his employment. (United Air Lines, Inc. v. Industrial Com. (1980), 81 Ill. 2d 85, 96.) It is also true that a claimant’s testimony, standing alone, may support an award where all of the facts and circumstances do not preponderate in favor of the opposite conclusion. It is the function of the Commission, however, to judge the credibility of witnesses and to draw reasonable inferences from the testimony even where the Commission’s findings differ from those of the arbitrator and no further evidence has been taken by the Commission. (Forrest v. Industrial Com. (1979), 77 Ill. 2d 86, 92-93.) It is only where the Commission’s decision is against the manifest weight of the evidence that the decision must be set aside. Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill. 2d 31, 36.

In the present case, claimant’s testimony was contradicted in four instances. First, Hubbard testified that claimant stated that he left work because he was not feeling well and that he complained of suffering from a cold. Second, Hubbard testified that they collected trash in the vicinity of Hollywood Heights Road in the afternoon, contrary to claimant’s testimony that this was accomplished in the morning. Third, contrary to claimant’s testimony that he believed that he mentioned his condition to respondent’s wife, Mrs. Seiber testified that claimant did not mention this condition but that he did state that he felt like quitting and that he did not get along with Hubbard. Fourth, in contrast to claimant’s belief that he had only carried one bag of rabbit feed at a time, respondent testified that he had seen claimant carrying two bags, one under each arm. In addition, claimant had represented to his physician and the staff at Memorial Hospital that he had been injured at work while lifting trash cans, although he incorrectly represented the date of this injury.

We cannot state, on the basis of the inconsistencies presented in the record, that claimant’s testimony is so obviously false that it is our duty to set aside the decision of the Commission. These inconsistencies, and the extent of impairment of claimant’s credibility through impeachment, present questions of fact more properly resolved by the Commission. (County of Cook v. Industrial Com. (1965), 32 Ill. 2d 181, 183.) Nor can it be said that claimant’s testimony is totally uncorroborated. The medical records introduced by both claimant and respondent, although inconsistent as to the date of the accident, indicate that claimant had on all occasions represented that he was injured at work. Respondent’s reliance upon Caterpillar Tractor Co. v. Industrial Com. (1978), 73 Ill. 2d 311, is misplaced. In Caterpillar Tractor not only was claimant’s testimony repeatedly contradicted, but also there was strong evidence that his injury occurred on a date other than when he was working.

In summary, we do not believe that the decision of the Commission is against the manifest weight of the evidence. For the reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE WARD

license: Public Domain

text:
    (No. 53199.
    ZIMMERMAN BRUSH COMPANY, Petitioner, v. THE FAIR EMPLOYMENT PRACTICES COMMISSION et al., Respondents.

      Opinion filed September 29, 1980.

      Original petition for prohibition.
    Howard L. Mocerf and Thomas R. Palmer, of Borovsky, Ehrlich & Kronenberg, of Chicago, for petitioner.
    Gary H. Palm and Mark J. Heyrman, of Chicago (Robert L. Cohen, law student, of counsel), for respondent Laverne L. Logan.
    William J. Scott, Attorney General, of Springfield (Russell C. Grimes, Jr., Assistant Attorney General, of Chicago, of counsel), for respondents Illinois Fair Employment Practices Com. et al.

   MR. JUSTICE WARD

delivered the opinion of the court:

On November 9, 1979, Láveme Logan was discharged from his employment at the Zimmerman Brush Company (company) in Chicago, on the ground that he was unable to perform his duties on an assembly line due to a physically handicapped left leg. On November 14, Logan filed a charge with the Illinois Fair Employment Practices Commission (Commission) claiming that he had been discriminated against because of his handicap. On January 30, 1980, the company was notified by the Commission to be present at a fact-finding conference set for March 18, 1980, in order to “define the issues, determine which facts are undisputed, obtain evidence, and ascertain whether there is a basis for a negotiated settlement of the charge.” The company was also asked to complete a two-page questionnaire regarding the circumstances of Logan’s discharge. The company answered the questionnaire and returned it on March 7.

On March 18 the company appeared for the sole purpose of moving to dismiss the charge on the ground that the conference was convened 125 days after Logan’s charge was filed, which was beyond the 120-day period provided for in the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 858(b)). Since the meeting was not held within the prescribed period, the company said the Commission lost jurisdiction and should dismiss the charge. Upon the oral denial of the motion and the hearing officer’s statement that the conference was to proceed, the company refused to participate and left the meeting.

On March 20 the company moved in this court for leave to file a petition for writ of prohibition under Supreme Court Rule 381(a) (73 Ill. 2d R. 381(a)). On March 25 the motion was allowed, briefs were ordered, the proceeding before the Commission was stayed, and oral argument on whether the writ should be allowed was set for June 25. On April 30, Logan filed a second charge with the FEPC which was identical to the first. The Commission notified the company of its intention to proceed with the second charge and the company moved to stay the second proceeding pending a decision on its petition for a writ of prohibition. We allowed the motion to stay.

The controversy here concerns the interpretation to be given section 8(b) of the Fair Employment Practices Act, which provides:

“(b) Within 120 days of the proper filing of a charge, the Commission shall convene a fact finding conference (unless the charge has been withdrawn or dismissed) for the purposes of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of a negotiated settlement of the controversy. Notice of such conference shall be given to all parties at least 10 days prior thereto and a default order may be entered against any party who fails to attend such conference without good cause shown.” Ill. Rev. Stat. 1979, ch. 48, par. 858(b).

The company contends that the legislature, in providing that the Commission “shall convene” a fact-finding conference within 120 days after a charge has been filed with the Commission, intended to make mandatory the convening of a fact-finding conference within this prescribed time period. It contends further that a failure by the Commission to do so would result in an automatic dismissal of the charge. The Commission’s position is that the provision in section 8(b) for convening a conference is only directory and that one may be called beyond the 120-day period. The complainant Logan states that, even if “shall convene” is deemed here to be mandatory, the automatic dismissal of his charge should not be the consequence of the Commission’s failure to convene the conference within the prescribed statutory period.

The use of “shall” in a statutory provision does not of itself require that the provision be held to be mandatory rather than directory. One must consider the word within the context of the entire statute, looking particularly to the purpose of the legislation. (See Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 81; In re Armour (1974), 59 Ill. 2d 102, 104; Corrigan v. Illinois Liquor Control Com. (1960), 19 Ill. 2d 230, 233.) Applying this principle we judge that the legislative direction to convene a fact-finding conference within the 120-day period is a mandatory one.

Section 8(b) was approved and became effective in September of 1978 shortly after this court interpreted the existing section 8(c), which required that the FEPC decide whether or not a complaint “shall” issue within 180 days after receipt of an employee’s charge. In Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61, this court analogized the 180-day period to a period of a statute of limitations and also noted the financial impact upon an employer who might be confronted by a complaint long after the alleged unfair employment practice. The court went on to hold that “the 180-day period prescribed in the statute was intended to ensure expeditious action on behalf of the FEPC, and must be considered mandatory.” (71 Ill. 2d 61, 68.) It was also observed: “The respondents have the right to expect that the impact of such administrative orders will be minimized by compliance with the statutory time limitations.” (71 Ill. 2d 61, 73.) Shortly thereafter in Board of Governors v. Illinois Fair Employment Practices Com. (1979), 78 Ill. 2d 143, 149, the decision in Springfield-Sangamon was upheld as being “clear and unequivocal,” and this court issued a writ of prohibition against the Commission, which had filed a complaint more than two years after the expiration of the 180-day statutory period.

As stated, section 8(b), requiring that “the Commission shall convene a fact finding conference” within 120 days after receiving an unfair employment practices charge, was added to the Act by amendment eight months after the decision in Springfield-Sangamon. We consider that the legislature’s use again of the term “shall” in section 8(b) indicates an intention that the prescription of a 120-day period be given a mandatory construction. This court has stated that where “previously construed terms in the unamended sections are used in the amendment, it is generally concluded that the legislature intended to adopt the prior construction given to these terms.” (Hupp v. Gray (1978), 73 Ill. 2d 78, 86, citing 1A Sutherland, Statutes and Statutory Construction sec. 22.35 (4th ed. 1972).) Though the question here is not identical, the principle of construction is applicable especially where, as here, the term previously construed appears in a later amendment to the same section of the statute. It is a canon of construction that the General Assembly is presumed to know how the courts have interpreted a particular statute and to have acted thoroughly and conscientiously. (See, e.g., People v. Manning (1979), 76 Ill. 2d 235, 241. See also 2A Sutherland, Statutes and Statutory Construction sec. 57.05 (4th ed. 1973).) It is reasonable to consider that under these circumstances the legislature intended to adopt the prior construction of “shall.”

The Commission would have us hold that the legislative pronouncement is but directory. It argues that the financial impact upon the employer in Springfield-Sangamon, when confronted with the prospect of being liable for back pay and interest over an extended period of time, was far greater than whatever impact there might have been here by a delay of five days in scheduling a conference.

We deem that this contention that the conference should be allowed to proceed beyond the 120-day period interprets Springfield-Sangamon too narrowly and ignores the goals underlying section 8(b). The fact-finding conference is specifically designed “for the purposes of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of a negotiated settlement of the controversy.” (Ill. Rev. Stat. 1979, ch. 48, par. 858(b).) Before the provision was added to the Act in 1978 there was no formal opportunity for expeditiously resolving a dispute. The only indication of whether it was deemed that the employee’s charge was supported by “substantial evidence” (Ill. Rev. Stat. 1979, ch. 48, par. 858(c)) would be on or before the 180th day after the filing of the charge when the Commission’s decision to issue a complaint against the employer or not to issue a complaint was announced.

Under section 8(b) the interests of both employee and employer can be served in that each is given an opportunity to discuss and possibly settle the dispute without formal action being taken against the employer by the Commission. Through a conference, unnecessary costs may be avoided and the Commission permitted to devote itself to other matters. Even if a settlement is not reached at this stage, the proceeding can be importantly valuable to the Commission in that the conference not only places the Commission in a better posture to decide whether to dismiss the employee’s charge, it also aids the Commission in setting up a procedural framework for the conciliatory process which follows. (See Ill. Rev. Stat. 1979, ch. 48, par. 858(c).) The public interest in an expeditious resolution of disputes which is made possible though section 8(b) is not less important than the financial considerations discussed in Springfield-Sangamon. Avoiding unnecessary expenditures of time and money by all parties serves to further the stated policy of the Act, which is not only to protect employees from unfair employment practices but also to protect “employers, labor organizations and employment agencies from unfounded charges of discrimination.” Ill. Rev. Stat. 1979, ch. 48, par. 851.

That a default order may be entered against a party failing to attend the conference not only illustrates the importance the legislature attached to this stage of the proceedings but also it supports our view that the provision for the convening of a conference within 120 days is a mandatory one. In Tuthill v. Rendelman (1944), 387 Ill. 321, 350, the court cited Clark v. Quick (1941), 377 Ill. 424, 430, where it was said: “Where terms of the statutes are peremptory and exclusive, where no discretion is reposed or where penalties are provided for its violation, the provisions of the act must be regarded as mandatory.”

We cannot adopt the employee’s contention that the Commission’s failure to convene a fact-finding conference should not result in the automatic dismissal of the action and that the Commission should be allowed to proceed without a conference having been held. To adopt this position would frustrate the purpose of attempting to facilitate just and expeditious resolutions of employment disputes. The fact-finding conference was clearly intended to be an integral and mandatory phase of the complaint process. Such conferences benefit the Commission, the employee and employer, and, of course, the public interest. Without a required fact-finding conference the Commission would in most instances have to proceed solely on the basis of the employee’s charge. Unless the Commission would be able to obtain information regarding the charge from some independent investigation its decision of whether or not to file a complaint would hardly be an informed one.

The Commission and Logan also contend that the company waived its right to object to the Commission’s decision to proceed with the conference on the 125th day and also is estopped from claiming that the Commission has lost jurisdiction over the dispute. The contention is founded upon the company’s response to the Commission’s questionnaire regarding the circumstances of the employee’s discharge. The questionnaire was filed with the Commission on March 7, six days before the 120-day period had expired and 11 days before the date on which the conference was actually convened on March 18.

The contention must be denied. The company simply complied with the Commission’s direction or request in completing the questionnaire. Had it not done so, as the company points out, it would have been responsible for delaying the proceeding. Too, it is not shown that the company was aware that the 120-day period under section 8(b) would expire before the scheduled date of the conference. We do not find a basis for estoppel or waiver. See generally Pantle v. Industrial Com. (1975), 61 Ill. 2d 365; Levin v. Civil Service Com. (1972), 52 Ill. 2d 516; Lowenberg v. Booth (1928), 330 Ill. 548; Town & Country Bank v. James M. Canfield Contracting Co. (1977), 55 Ill. App. 3d 91.

We also are not persuaded by the employee’s protests that his rights to due process and equal protection were violated. The statutory scheme here was to provide, through administrative and judicial channels, a means of relief from discriminatory employment practices. The legislature could establish reasonable procedures to be followed upon a charge, and the observance of them here did not violate his constitutional rights.

The employee makes two other arguments. He says that the question regarding his charge against the company has been mooted because he filed a second and identical charge against the company before the 180-day statutory period within which a charge must be filed had expired. This, he argues, allows the Commission to proceed as if the first charge had never been filed. He further contends that the second charge is governed by the Illinois Human Rights Act, which became effective on July 1, 1980. (Ill. Rev. Stat., 1979 Supp., ch. 68, par. 1 — 101 et seq.). Logan directs attention to section 7 — 102(C)(3), which he says makes the convening of a fact-finding conference discretionary with the Commission. That section provides:

“Upon reasonable notice to the complainant and the respondent, the Department may conduct a fact-finding conference. The fact-finding conference shall be held within 120 days of the date on which a charge has been filed unless waived by the parties in writing 10 days before the 120 day period has expired.” Ill. Rev. Stat., 1979 Supp., ch. 68, par. 7 — 102(C)(3).

The argument ignores the principle that a statute will be given prospective application unless there is a clear expression of legislative intent that it is to be retroactively applied. (See, e.g., People ex rel. American Federation of State, County & Municipal Employees v. Walker (1975), 61 Ill. 2d 112; Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, cert, denied (1975), 420 U.S. 975, 43 L. Ed. 2d 655, 95 S. Ct. 1398; Country Mutual Insurance Co. v. Knight (1968), 40 Ill. 2d 423.) It is evident there is nothing in the above-quoted section to require or permit retroactive application.

Too, this controversy was not made moot by the employer’s filing a second charge with the Commission. As the complainant interprets the Act, as long as the 180 days within which he may file a charge with the Commission under section 8 (a) have not expired, he is entitled to file another charge. To be consistent, it would seem he would have to contend that this would be so regardless of the fact that the Commission had dismissed an earlier charge or, as in this case, had failed to convene a fact-finding conference within 120 days, which resulted in the dismissal of the charge. To allow such interpretation, however, obviously would frustrate the design of sections 8(a) and 8(b) and, in a case such as this one, would allow the Commission, despite its failure to comply within the Act, to proceed on an identical charge after the first charge had already expired or suffered dismissal. Not only would an employer’s rights be prejudiced if an employee were allowed to file a second and successive charge, but also the public interest in promoting an expeditious resolution of charges would be circumvented. In view of the foregoing discussion, the Commission is prohibited from proceeding with the second charge filed by the complainant.

For the reasons given, the petition for writ of prohibition is allowed.

Writ awarded.


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

text:
    (No. 52777.
    RAYMOND R. ESCHER, Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, Appellee.

      Opinion filed October 17, 1980.

      GOLDENHERSH, C.J., dissenting.
    Morris B. Chapman, of Chapman & Carlson, of Granite City, for appellant.
    Karl D. Dexheimer, of Pope & Driemeyer, of Belleville, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In the circuit court of Madison County, plaintiff, Raymond R. Escher, brought suit against the defendant, Norfolk & Western Railway Company, under the Federal Employers’ Liability Act (Act) (45 U.S.C. sec. 51 et seq. (1976)), to recover for injuries he suffered while working for the defendant. The jury returned a verdict for plaintiff in the amount of $30,000. The appellate court reversed, finding that plaintiff had failed in his burden of proof and that, consequently, the trial court had erred by not directing a verdict in favor of the defendant. (77 Ill. App. 3d 967.) The case is before us on a certificate of importance.

The sole issue to be determined is whether the plaintiff produced sufficient competent evidence to sustain the jury’s verdict.

On March 26, 1974, the plaintiff, employed by defendant as a carman, was in the company roundhouse awaiting the 3 p.m. buzzer to signal the end of his shift. As soon as the buzzer sounded, plaintiff testified, he moved toward the exit door, following 2Vz feet behind another employee, Stanley Schneider. He was looking directly at Schneider’s back as they approached the door. Plaintiff further testified that Schneider opened the door but that “it didn’t open like it normally should have, and I just *** bumped into him, and I stepped on the back of his foot.” Plaintiff thought at the time that he had sprained his left ankle.

Stanley Schneider testified at trial and stated that he had no difficulty with the door at the time of the accident nor at any other time prior to the incident. He stated that he merely stopped in order to open the door and that plaintiff stepped on his heel.

The next day plaintiff returned to work, at which time he reported the incident to his supervisor, Joseph Whitley. Whitley testified that plaintiff had said he turned his ankle when he stepped on the back of Schneider’s foot as they were going out the door the previous afternoon. Whitley prepared a report of the incident on March 27, 1974. He also tested the door and found it to be functioning properly.

Four months after the incident, plaintiff went to the company physician, Dr. Diaz, who took X rays of the ankle and administered heat treatments. In January of 1976, approximately PA years after seeing the company physician, plaintiff went to Dr. Heidke at the request of his attorney. Dr. Heidke referred the plaintiff to Dr. Richard Koenig, who did not examine plaintiff until 13 months later, in February of 1977. Dr. Koenig testified that he based his opinion of plaintiff’s condition on X rays taken earlier by Dr. Heidke, which X rays indicated mended breaks in three or four bones of plaintiff’s ankle.

Richard Bain, a general contractor, testified as an expert for plaintiff. Bain stated that he inspected the door in question in September 1977, three years and eight months after plaintiff was injured. He found, at that time, that a brass screw in the doorknob had worn out, causing the latch to slip, and that a metal strip at the top of the door was not properly welded and caused the door to jam. He also stated that the door in question was a light commercial variety which should be used only for light traffic. On cross-examination, Bain admitted that he had no knowledge of the condition of the door at the time of plaintiff’s injury.

The Supreme Court has clearly set out the standard to be applied, in FELA actions, to determine if a plaintiff has presented a jury question:

“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury ***.” (Emphasis added.) (Rogers v. Missouri Pacific R.R. Co. (1957), 352 U.S. 500, 506, 1 L. Ed. 2d 493, 499, 77 S. Ct. 443, 448.)

We recognize that, under the Act, the right of the jury to pass upon the question of the employer’s negligence must be liberally construed, since the jury’s power to engage in inferences is significantly broader than that under the common law. (Eggert v. Norfolk & Western Ry. Co. (2d Cir. 1976), 538 F.2d 509, 511; Chicago, Rock Island & Pacific R.R. Co. v. Melcher (8th Cir. 1964), 333 F.2d 996, 999.) However, the plaintiff must produce some evidence of negligence on the part of the employer before the case may be given to the jury. (Inman v. Baltimore & Ohio R.R. Co. (1959), 361 U.S. 138, 140, 4 L. Ed. 2d 198, 201, 80 S. Ct. 242, 243; Milom v. New York Central R.R. Co. (7th Cir. 1957), 248 F.2d 52, 54.) Also, a nonnegligent employer cannot be held liable for an ordinary accident which occurs in a reasonably safe work environment. Burch v. Reading Co. (3d Cir. 1957), 240 F.2d 574, 580.

The plaintiff argues that the appellate court erred in its finding that part of Bain’s testimony regarding the “brass screw” and “metal strip” of the door was inadmissible. The appellate court so held because the inspection was made more than 314 years after the time of the accident, during which time the door had been used over 80,000 times. We agree with the appellate court’s conclusion, in that the condition of the door 314 years after the time of plaintiff’s injury is irrelevant absent a foundation in the evidence to show that the condition of the door was the same at the time of Bain’s inspection as it was at the time of the incident.

The remaining portion of Bain’s testimony, in which he commented that the door was one of a light commercial variety, amounts to a volunteered conclusion. It does not address the question for which his testimony was elicited, i. e., the safety of the door at the time of plaintiff’s injury. The fact that a heavier door might have been used does not prescribe a conclusion that a lighter one was unsafe.

Other than Bain’s testimony, the only remaining evidence is plaintiff’s own statement that the door “didn’t open like it should have, and [he] just *** bumped into [Schneider] and *** stepped on the back of his foot.” However, plaintiff’s own statement also made it clear that he could not have observed the actual opening of the door, because his view was blocked by Schneider’s back. Schneider, who clearly saw the door function, testified that he had no trouble opening the door. We therefore conclude that plaintiff failed to meet his burden of proof.

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. CHIEF JUSTICE GOLDENHERSH,

dissenting:

I dissent. The majority, although accurately stating the test to determine whether the plaintiff presented a jury question, has not correctly applied it to the evidence in this case.

The transcript shows that plaintiff testified that, for a period of approximately two months prior to the occurrence, “the door would jam a lot of times and the door knob would not turn. It was just a bad door in my opinion.” He also testified: “As we got to the door I did not open the door. Like I say, Mr. Schneider opened the door, but it didn’t open like it normally should have ***.”

On cross-examination he stated: “Mr. Schneider was right at the door. The door did not open.” “He bumped into the door and thereafter we got the door opened and walked out.”

Mr. Schneider’s testimony did not conflict with plaintiff’s testimony, and, under the controlling cases, whether the defendant employer’s negligence played any part in causing plaintiff’s injury was a question of fact for the jury. I would reverse the judgment of the appellate court and reinstate the judgment entered on the jury verdict.


author: MR. JUSTICE MORAN MR. JUSTICE KLUCZYNSKI,

text:
    (No. 53487.
    ILLINOIS HOUSING DEVELOPMENT AUTHORITY, Appellee, v. A. D. VAN METER, JR., Chairman of the Illinois Housing Development Authority, Appellant.

      Opinion filed October 10, 1980.

      KLUCZYNSKI, J., dissenting.
    Pfeifer & Kelty, P.C., of Springfield (Thomas W. Kelty, of counsel), for appellant.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Alan S. Ganz and Margaret S. Garvey, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Sangamon County declared valid an amendment to the Illinois Housing Development Act (amendment) which authorized the issuance of municipal bonds by plaintiff, the Illinois Housing Development Authority (Authority), to raise low-interest mortgage money. The court issued a writ of mandamus ordering defendant, A. D. Van Meter, Jr., as chairman of the Authority, to execute a notice of sale of bonds and to take all action necessary to issue the bonds.

The Authority was created in 1967 (Ill. Rev. Stat. 1967, ch. 671/2, par. 301 et seq.) to remedy what the legislature found to be a serious shortage of decent, safe and sanitary housing available to persons and families of low and moderate income (Ill. Rev. Stat. 1967, ch. 67%, par. 303). In furtherance of this purpose, the legislature, in 1979, passed the amendment at issuej which provides in part:

“(b) The Authority may have outstanding at any one time bonds and notes in an aggregate principal amount not exceeding $50,000,000, in addition to the amount authorized in subsection (a), which additional amount shall be used solely for the purposes of making loans to lending institutions, as provided for in Section 7.24 of this Act, for use by such institutions in making residential mortgage loans where the proposed owner-occupant, who shall be an Illinois resident, has never previously owned a single-family home or condominium and where each of such loans made by the participating lending institutions is for an amount which does not exceed 95% of the value of the property which is to be purchased with the proceeds of the loan. Of the proceeds of bonds issued under authority of this subsection (b), one-half shall be allocated for use in counties with a population of over 3,000,000 and one-half for use in the remainder of the State. The interest charged by the lending institutions on such residential mortgage loans shall not be less than .5% nor more than 1% above the interest rate on the bonds authorized by this subsection.” Ill. Rev. Stat., 1979 Supp., ch. 671/2, par. 322(b).

To implement the amendment, the Authority adopted a resolution that authorized the issuance of $50 million in bonds to fund the above-quoted subsection and directed the defendant to execute said bonds. By separate resolution, the Authority directed the defendant to publish a notice of sale inviting bids for the purchase of the bonds. However, the defendant refused either to execute the bonds or publish the notice as directed by the resolution and plaintiff instituted this action. This court allowed direct appeal under Rule 302(b). 73 Ill. 2d R. 302(b).

Defendant contends that the amendment, by restricting recipients of mortgage loans to persons in families who have never owned a single-family home or condominium, (1) violates the equal protection clauses of both the United States and Illinois constitutions, and (2) constitutes special legislation in violation of article IV, section 13, of the Illinois Constitution.

The first test in assessing an equal protection claim is to determine if the amendment herein at issue operates to the disadvantage of a suspect class or infringes upon a fundamental right. (San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 17, 36 L. Ed. 2d 16, 33, 93 S. Ct. 1278, 1288.) If the legislation in question creates a “suspect classification,” such as race (Loving v. Virginia (1967), 388 U.S. 1, 11, 18 L. Ed. 2d 1010, 1017, 87 S. Ct. 1817, 1823), alienage (Graham v. Richardson (1971), 403 U.S. 365, 371-72, 29 L. Ed. 2d 534, 541-42, 91 S. Ct. 1848, 1851-52), national origin (Oyama v. California (1948), 332 U.S. 633, 646, 92 L. Ed. 249, 259, 68 S. Ct. 269, 275), or infringes upon a fundamental right, such as the right to travel (Shapiro v. Thompson (1964), 394 U.S. 618, 634-35, 22 L. Ed. 2d 600, 615, 89 S. Ct. 1322, 1331-32), the right to vote (Harper v. Virginia State Board of Elections (1966), 383 U.S. 663, 670, 16 L. Ed. 2d 169, 174, 86 S. Ct. 1079, 1083), or the right to fair treatment in the criminal process (Douglas v. California (1963), 372 U.S. 353, 355-56, 9 L. Ed. 2d 811, 813-14, 83 S. Ct. 814, 815-16), then the statute must promote a compelling or overriding State interest. If a suspect classification or fundamental right is not found, the legislation simply must bear a rational relationship to a legitimate governmental interest. Dandridge v. Williams (1970), 397 U.S. 471, 485-87, 25 L. Ed. 2d 491, 501-03, 90 S. Ct. 1153, 1161-62.

The defendant argues that the amendment creates a suspect classification based upon wealth, which, in itself, should trigger a review under a strict-scrutiny standard. However, where no fundamental right is involved, the United States Supreme Court repeatedly has applied the rational-relationship test to legislative classifications based upon wealth. In San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278, legislation was enacted invoking a property tax system which financed school districts in a manner that created subsidiary districts with educational opportunities based on the wealth of the district in which the child resided. There, the court applied the rational-relationship test:

“ [T] his Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny ***.” 411 U.S. 1, 29, 36 L. Ed. 2d 16, 40, 93 S. Ct. 1278, 1294.

Based upon this test the court found no violation of the equal protection clause. The court considers such wealth classifications to be regulations concerning economic and social welfare policy that do not merit active judicial review under the strict-scrutiny or compelling-interest standards. See Dandridge v. Williams (1970), 397 U.S. 471, 485-87, 25 L. Ed. 2d 491, 501-03, 90 S. Ct. 1153, 1161-62; Jefferson v. Hackney (1972), 406 U.S. 535, 546-49, 32 L. Ed. 2d 285, 295-98, 92 S. Ct. 1724, 1731-32 (upholding a legislative classification that limited the receipt of welfare benefits); James v. Valtierra (1971), 402 U.S. 137, 141-43, 28 L. Ed. 2d 678, 682-83, 91 S. Ct. 1331, 1333-34 (upholding a constitutional classification limiting low-income public housing).

We conclude, under the above authority, that legislation based on wealth does not constitute, per se, a suspect classification under the equal protection clauses of either the United States or Illinois constitutions.

Although defendant concedes there are “no cases squarely holding that housing is a fundamental right,” he asks this court to treat the right to housing as such a right, “due to the seriousness of the problem,” and apply the “suspect” test in this instance. The United States Supreme Court has clearly ruled that a right to private housing is not a fundamental right. (Village of Belle Terre v. Boraas (1974) , 416 U.S. 1, 7, 39 L. Ed. 2d 797, 803, 94 S. Ct. 1536, 1540; Lindsey v. Normet (1972), 405 U.S. 56, 74, 31 L. Ed. 2d 36, 50-51, 92 S. Ct. 862, 874.) Consequently, the court has always applied the rational-relationship test to government actions that might burden a person’s ability to find adequate housing. We hold in the instant case that a wealth classification infringing on a person’s right to housing, a nonfundamental right, should be examined under a rational-relationship standard of review.

Under the traditional equal protection standards utilized by both the Federal and State courts, a legislative classification will be upheld if it bears a rational relationship to a legitimate legislative purpose. (McGowen v. Maryland (1961), 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 398-99, 81 S. Ct. 1101, 1104-05; S. Bloom, Inc. v. Mahin (1975) , 61 Ill. 2d 70, 76.) Thus, the inquiry shifts to an analysis of the legislative purpose and a subsequent determination whether the legislative classification is rationally related to that purpose. In re Estate of Karas (1975), 61 Ill. 2d 40, 47-48.

As earlier noted, the Authority was established to remedy a serious shortage of decent, safe and sanitary housing available to persons and families of low and moderate income. The defendant concedes that issuance of bonds for the purchase of houses and condominiums is a proper public purpose within the scope of the Illinois Housing Development Act. The question has thus become whether the legislative classification created by the amendment is rationally related to the purpose set forth in the original act.

Under traditional concepts of equal protection, i.e., when a rational-basis test is used, a legislative classification is presumed valid. (Lindsey v. Normet (1972), 405 U.S. 56, 71, 31 L. Ed. 2d 36, 49, 92 S. Ct. 862, 873; In re Estate of Karas (1975), 61 Ill. 2d 40, 47.) The burden of rebutting the presumptive validity of the classification rests upon the party challenging its constitutionality. (People v. Sherman (1974), 57 Ill. 2d 1, 4.) Finally, a statutory classification will not be declared unconstitutional “if any state of facts reasonably may be conceived to justify it.” McGowen v. Maryland (1961), 366 U.S. 420, 426, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101, 1105; Lindsey v. Normet (1972), 405 U.S. 56, 70, 31 L. Ed. 2d 36, 48, 92 S. Ct. 862, 872.

Defendant argues that the amendment, by limiting its application to first-time home and condominium buyers, does not rationally relate to the legislative purpose of providing housing for persons with low and moderate income. Defendant states that a homeowner who is purchasing another home is not necessarily in a better financial position than a first-time home buyer. Yet, the defendant neither presents any factual basis nor any legal authority to support this statement. The unsupported opinions of the defendant are insufficient to overcome the presumption that the law is constitutional.

The plaintiff, on the other hand, presents two studies that indicate non-first-time purchasers of homes are in a better position to afford a home than first-time home buyers. (See Homeownership: The Changing Relationship Of Costs and Incomes And Possible Federal Roles, prepared by the Congressional Budget Office, Congress of the United States, Washington, D.C., January 1977, and Homeownership: Coping With Inflation, prepared by the United States League of Savings Associations, Chicago, Illinois, 1980.) Both studies conclude that affordability presents a greater problem for the first-time home buyer than for repeat buyers. In the period between 1977 and 1979 the percentage of total purchases made by first-time buyers dropped over 50% from 36.3% to 17.8%. Home-ownership: Coping With Inflation 3.

We recognize that the legislative classification established by the amendment may exclude certain non-first-time purchasers who are in greater financial need than some first-time home buyers. However, even though the statute could have been drawn to include such repeat purchasers there is no requirement that a statutory classification be accurate, scientific or harmonious so long as it is not arbitrary and will accomplish the legislative design. People v. Valdez (1980), 79 Ill. 2d 74, 83-84; Schiller Park Colonial Inn, Inc. v. Berg (1976), 63 Ill. 2d 499, 512.

The aforementioned studies indicate that generally speaking in a statistical sense, first-time home buyers are less able to afford a home than a second- or third-time purchaser. As the homeownership study states, “ [W] hile inflation in home prices represents a barrier to the first-time buyer, it also means appreciation in the value of the typical repurchaser’s largest asset.” Homeownership: Coping With Inflation 15.

The studies present a set of facts that reasonably may be conceived to justify the law. Thus, under the test announced by the United States Supreme Court in McGowen v. Maryland and Lindsey v. Normet, and by this court in Illinois Association of Firefighters, Local 73 v. City of Waukegan (1967), 37 Ill. 2d 423, 425, we find the statutory classification of the amendment bears a rational relationship to the legitimate legislative purpose of providing financing for housing to low- and moderate-income families. We hold, therefore, that the amendment does not violate the equal protection clauses of either the Federal or Illinois constitutions.

Defendant next asserts that the amendment constitutes special legislation in violation of section 13 of article IV of the Illinois Constitution. This court has held that the same standards applied in both Federal and State equal protection analyses are utilized to determine violations of the special legislation provision of the Illinois Constitution. (S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 76-77.) Thus, the special legislation section of the Illinois Constitution allows differentiations between similarly situated persons if the classification bears a rational relationship to a legitimate legislative purpose. Anderson v. Wagner (1979), 79 Ill. 2d 295, 315.

Anderson involved the validity of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which provides a special limitations period for medical malpractice actions against physicians and hospitals. This court upheld the law against plaintiff’s attacks based upon the equal protection clauses of the Federal and State constitutions and the special legislation provision of section 13 of article IV of the Illinois Constitution, stating:

“No doubt a general statute of limitations which was not limited in its applicability to only physicians and hospitals but applied to all personnel and institutions administering health care would have achieved whatever end this legislative response to the medical malpractice insurance crisis was seeking to achieve. In fact, a statute of limitations that would apply to all professional malpractice cases would have achieved the result. The sentence in section 13 of article IV of our constitution— Whether a general law is or can be made applicable shall be a matter for judicial determination — does not prohibit classification of persons and objects. As noted in Skinner v. Anderson [(1967), 38 Ill. 2d 455], however, the classifications must be reasonably related to the legislative purpose and it must appear that there is a sound basis for regarding the class as distinct and separate for the purpose of the legislation.” (79 Ill. 2d 295, 320.)

This court concluded that because the statute bore some rational relationship to the legislative purpose, it was not special legislation falling within the proscription of the Illinois Constitution. See also Youhas v. Ice (1974), 56 Ill. 2d 497, 502; Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 110-11; People ex rel. Vermilion County Conservation District v. Lenover (1969), 43 Ill. 2d 209, 217.

Similarly, in the instant case, the category could have been made broader or more precise. Nevertheless, we have found, like the statute in Anderson v. Wagner, the amendment is rationally related to a proper legislative purpose. Consequently the statute does not fall within the special legislation prohibition of the Illinois Constitution.

For the reasons stated, the judgment of the circuit court of Sangamon County is affirmed.

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI,

dissenting:

By virtue of its decision in this case, the majority upholds a statutory amendment which confers a special legislative benefit on a particular group of citizens to the exclusion of others of like circumstance. While an equal protection analysis may not suffice to expose the invidious nature of this legislative action, the special legislation clause found in our constitution nonetheless provides a means by which more meaningful judicial review can be undertaken and the fallacy of this legislation can be shown. I therefore dissent.

As the majority acknowledges, the purpose of the Illinois Housing Development Act is “to remedy what the legislature found to be a serious shortage of decent, safe and sanitary housing available to persons and families of low and moderate income.” (82 Ill. 2d at 118.) Given this purpose, the amendment, limiting participation in the mortgage program to those who have “never previously owned a single-family home or condominium,” simply cannot withstand scrutiny under the special legislation prohibition of the Illinois Constitution. The purpose of the statute can be fulfilled by an amendment drafted in more general terms consonant with that purpose, and the special legislative benefit conferred only upon first-time buyers therefore cannot stand. The benefit must be afforded equally among those with low and moderate income, regardless of whether they have previously owned a home. The need for decent, safe and sanitary housing, and for assistance in obtaining that housing, can be as great for one who has previously owned a home as it is for one who is a first-time buyer. The fact of previous ownership at some point in the individual’s lifetime does not ipso facto establish a preferred financial status. An individual, for example, may have been forced to sell his home without profit or at a loss, and the fact of prior ownership will not help him one iota in mustering funds for a downpayment on another home. This is recognized even by the Congressional Budget Office report relied upon so heavily by the majority. That report states that one who has previously owned a home will have “no difficulty meeting the down-payment for a different home,” but it acknowledges that this general assertion is true only “if their original house had shared in even a small part of the general increase in sales prices.” Horneownership: The Changing Relationship Of Costs And Incomes And Possible Federal Roles, prepared by the Congressional Budget Office, Congress of the United States, Washington, D.C., January 1977, at xv.

The majority’s failure to recognize that the amendment before us is special legislation can only be attributed to its faulty perception of the court’s role in addressing attacks made under the special legislation provisions of our constitution and its erroneous belief that a special legislation challenge is foreclosed by an unsuccessful equal protection attack. The constitutional provisions prohibiting special legislation provide: “The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.” (Ill. Const. 1970, art. IV, sec. 13.) In Grace v. Howlett (1972), 51 Ill. 2d 478, 487, the court held that these provisions do not cover the same ground as the equal protection clause and that “the new section 13 of article IV has increased judicial responsibility for determining whether a general law ‘is or can be made applicable.’ ” In invalidating an imprecisely drawn statute, the court held that it cannot withhold a determination that a statute is special legislation simply because that statute withstands analysis under the highly deferential rational-relationship standard of equal protection review. The court’s language on this point is of equal relevance here:

“Unless this court is to abdicate its constitutional responsibility to determine whether a general law can be made applicable, the available scope for legislative experimentation with special legislation is limited, and this court cannot rule that the legislature is free to enact special legislation simply because ‘reform may take one step at a time.’ (See, Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461.) The constitutional test under section 13 of article IV is whether a general law can be made applicable, and in this case that question must receive an affirmative answer.” (51 Ill. 2d 478, 487.)

(See also Skinner v. Anderson (1967), 38 Ill. 2d 455; Harvey v. Clyde Park District (1964), 32 Ill. 2d 60.) The court’s most recent pronouncements on the subject of special legislation, and its recent treatment of the Grace, Skinner and Harvey cases above cited, are indefensible. (See, e.g., Anderson v. Wagner (1979), 79 Ill. 2d 295, 316 (equating special legislation analysis with equal protection analysis), appeal dismissed (1980), 449 U.S.— , 66 L. Ed. 2d 11, 101 S. Ct. 54; Friedman & Rochester v. Walsh (1977), 67 Ill. 2d 413, 421-23 (same).) The majority today continues on that ill-advised course.

In summary, it is clear to me that a general law would solve the problem perceived by the legislature. I therefore cannot join the majority.


author: MR. JUSTICE RYAN MR. JUSTICE WARD,

text:
    (No. 52687.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JEFFREY BAYLES, Appellee.

      Opinion filed October 17, 1980.

      WARD and UNDERWOOD, JJ., dissenting.

      William J. Scott, Attorney General, of Springfield, and Mary Jane Webb, State’s Attorney, of Vienna (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and William S. Zale of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    John H. Reid, Deputy Defender, and E. William Hutton, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal concerns the warrantless opening and seizing of the contents of a closed, unlocked suitcase. The circuit court of Johnson County denied the defendant’s motion to suppress the evidence seized, and the defendant was convicted. The appellate court reversed, with one justice dissenting. (76 Ill. App. 3d 843.) We granted leave to appeal.

On October 15, 1977, the defendant, Jeffrey Bayles, was involved in a one-car accident in Johnson County. His automobile was found in an upside-down position in a field next to a rural highway. Defendant was not seriously injured, but was trapped inside the vehicle. His fiance was thrown from the car and killed. Several items that had been in the car were found in the field. A deputy of the Johnson County sheriff’s office, following established procedure of that office, inventoried the items found and also opened closed containers and inventoried their contents. Cannabis was found and seized from within a blue cloth drawstring sack and a brown suitcase. Tinfoil packets containing what was later determined to be a controlled substance were also found in the sack. Defendant did not contest the ownership of the sack and the luggage. He did, however, seek the suppression of the cannabis and the controlled substance discovered in the containers, alleging the violation of his constitutional right to be free from unreasonable searches and seizures. Only the contents of the suitcase are involved in this proceeding. The appellate court, with one justice dissenting, reversed defendant’s conviction based on its finding that the inventory of the contents of defendant’s suitcase constituted an illegal search.

Evidence concerning the inventory and the resultant discovery of the cannabis was adduced during the preliminary hearing, the hearing on defendant’s motion to suppress, and the hearing on defendant’s motion for a rehearing on the suppression motion. Gregory Carlock, a witness who resided near the scene of the accident, was one of the first persons to arrive at the scene. He testified that defendant told him that he had items of value in his suitcase and requested that Carlock close the suitcase, which had been thrown from the car in the accident. Carlock stated that he tucked in some clothes that were sticking out of the case, closed both latches, and rolled the tumbler on the suitcase’s combination lock. Carlock testified that he told defendant that he would tell the sheriff that he had closed the suitcase and that the sheriff should watch it since it contained items of value. According to Carlock, defendant did not respond to this statement. Carlock’s actions were witnessed by another neighbor, James Williams, who testified that he observed Carlock tuck the clothes in and close the brown suitcase.

Johnson County Sheriff Elry Faulkner also testified. He stated that the blue cloth drawstring bag was lying outside the car by the trunk. The sack was open to the extent that he was able to see plastic sticking out of its opening. The sheriff opened the sack and found a plastic bag containing what was later determined to be approximately 5 grams of cannabis. He also discovered some green plant material and three tinfoil packets. The sheriff did not open the tinfoil packets; it was later determined that each contained one Methaqualone tablet. Faulkner shoved the plastic bag back into the sack, pulled the drawstring, and gave the sack to his deputy. The sheriff then stated that he saw a brown shaving-kit bag located inside the car. He opened the kit and discovered a large quantity of paper currency. The sheriff instructed his deputy to witness the counting of the money, which came to $1,255. Although the sheriff saw the brown suitcase situated on the ground at the rear of the car, he testified that he was unable to ascertain whether it was open. Faulkner stated that Carlock then informed him, within the hearing of his deputy, that the suitcase contained something of value.

The deputy sheriff of Johnson County, James Eugene Alsip, also testified. He stated that the sheriff was already at the scene of the accident at the time of his arrival. Sheriff Faulkner handed Alsip a blue cloth sack; the sack was closed at this time. The sheriff also had the deputy witness him count the $1,255 found in the brown shaving-kit bag. Alsip was then instructed by the sheriff to “take charge” of the property. Alsip understood this instruction to mean that he make an inventory of the items found at the scene of the accident. He overheard Carlock notify the sheriff of the presence of valuable items in the defendant’s suitcase. According to Alsip, the suitcase was not fully closed. Instead, one latch was unfastened and the case was open one-half to three-quarters of an inch on that side. Alsip unfastened the other latch and opened the suitcase. Inside he found some paper currency, a plastic bag containing a brown, leafy substance, and a closed, folded-over brown grocery bag. Alsip opened the brown bag and discovered a brick of marijuana. The contents of the suitcase are the basis of the possession-of-cannabis charge involved in this case.

According to both the sheriff and the deputy, the opening of closed, unlocked containers was in accordance with the inventory procedure customarily followed by the Johnson County sheriff’s office. Sheriff Faulkner stated that it was the policy of his office to open closed, unlocked containers for the purpose of inventorying the items contained therein. He stated that he created this policy rule in order to protect both the owner of the property and the sheriff’s office. Although he characterized the official activity as an inventory, the sheriff stated that he did suspect the presence of alcoholic beverages, since only one car was involved in the accident. Deputy Alsip testified that he believed an inventory of the suitcase to be necessary to protect defendant’s valuables. He stated that he was aware of the discovery of the cash in the shaving-kit bag and he heard Carlock inform the sheriff of the presence of valuable items in the suitcase. Since the sheriff’s office would be responsible for these items, Alsip deemed the inventory of the contents of the luggage to be necessary also for the protection of the officers. Alsip unequivocally stated that he was not looking for drugs, was not concerned for his safety, and that the inventory was not performed as a search incident to an arrest.

The fourth amendment to the Federal Constitution guarantees the individual the right to be free from unreasonable searches and seizures. In considering fourth amendment issues, our fundamental inquiry is whether or not the search or seizure was reasonable under all of the circumstances. (United States v. Chadwick (1977), 433 U.S. 1, 9, 53 L. Ed. 2d 538, 547, 97 S. Ct. 2476, 2482; Cooper v. California (1967), 386 U.S. 58, 59, 17 L. Ed. 2d 730, 732, 87 S. Ct. 788, 789-90.) The clause operates to protect persons, rather than places, from unreasonable governmental intrusions into their legitimate expectations of privacy. (Katz v. United States (1967), 389 U.S. 347, 351, 19 L. Ed. 2d 576, 581-82, 88 S. Ct. 507, 511.) As such, the application of the fourth amendment is not limited to the home but, instead, extends to searches conducted in a variety of settings, including searches of automobiles. (United States v. Chadwick (1977), 433 U.S. 1, 10, 53 L. Ed. 2d 538, 547, 97 S. Ct. 2476, 2482-83.) While a search warrant is generally constitutionally required for the search of an automobile, the rule is subject to exceptions. Warrantless searches of automobiles have been upheld where incident to an arrest; under the moving-automobile exception; when the vehicle is lawfully impounded; or if valid consent for the search has been obtained. (See Annot., 26 L. Ed. 2d 893 (1970).) Although there has been no judicial pronouncement that an inventory is a search (People v. Hamilton (1979), 74 Ill. 2d 457, 464; see South Dakota v. Opperman (1976), 428 U.S. 364, 369-71, 49 L. Ed. 2d 1000, 1005-07, 96 S. Ct. 3092, 3097-98; see generally 2 W. LaFave, Search and Seizure sec. 7.4, at 563-65 (1978)), the intrusion is tested for its constitutionality by an application of the fourth amendment reasonableness standard. People v. Hamilton (1979), 74 Ill. 2d 457, 465; People v. Clark (1976), 65 Ill. 2d 169, 174; People v. Smith. (1969), 44 Illl. 2d 82, 88.

In the instant appeal, both parties concede that the Johnson County officers conducted an inventory of the defendant’s disabled vehicle. According to the State, the inventory, conducted in conformity with regular departmental procedure, was reasonable in view of the exigencies presented by the case. This is also the position of the dissenting justice in the appellate court. (76 Ill. App. 3d 843, 853.) The defendant counters by asserting that no exigencies justified the opening of the suitcase and, by so doing, the officers exceeded the permissible bounds of an inventory procedure.

The United States Supreme Court has not yet ruled specifically on whether inventories of closed containers can be reconciled with the fourth amendment guarantee. In South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092, the court upheld the inventory search of a vehicle impounded for traffic violations. In that case, police officers discovered marijuana in the vehicle’s unlocked, but closed, glove compartment. The court first held that the procedure of inventorying the contents of lawfully impounded vehicles, customarily followed throughout the nation, was a reasonable measure used to further three legitimate objectives: the protection of the owner’s property; the protection of the police against claims of lost or stolen property; and the protection of police from potential danger. Applying the three objectives enunciated in Opperman, this court has upheld the validity of an inventory search of an automobile lawfully impounded following a defendant’s arrest. People v. Clark (1976), 65 Ill. 2d 169.

We note that the inventory in Opperman did not involve the opening of containers transported in the vehicle. The precedential scope of a decision is limited to the facts before the court. (People v. Beard (1974), 59 Ill. 2d 220, 225, cert. denied (1975), 421 U.S. 992, 44 L. Ed. 2d 483, 95 S. Ct. 1999.) The Opperman holding is confined, therefore, to cases involving warrantless inventory searches of closed, unlocked glove compartments in lawfully impounded vehicles. The language of both . the separate opinions filed in the Opperman case supports this conclusion. In a concurring opinion, Mr. Justice Powell stated: “Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.” (South Dakota v. Opperman (1976), 428 U.S. 364, 380, 49 L. Ed. 2d 1000, 1011-12, 96 S. Ct. 3092, 3102.) Mr. Justice Marshall, writing for the dissenting justices, stated that “the Court’s opinion does not authorize the inspection of suitcases, boxes, or other containers which might themselves be sealed, removed and secured without further intrusion.” (428 U.S. 364, 389 n.6, 49 L. Ed. 2d 1000, 1017 n.6, 96 S. Ct. 3092, 3107 n.6.) Thus, the United States Supreme Court has not yet ruled specifically on whether inventories of closed containers can be reconciled with the fourth amendment guarantee to be free from unreasonable searches and seizures.

In United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, San Diego railroad officials notified Federal narcotics agents of their suspicion that an unusually heavy, double-locked footlocker boarded for Boston contained contraband. Federal agents in Boston met the San Diego train and arrested three men after the footlocker had been loaded into the trunk of a waiting car. The respondents and the car containing the footlocker were then taken into custody. The agents unlocked and opened the footlocker approximately IV2 hours after the warrantless arrests, finding a large quantity of marijuana. A search warrant had not been obtained, and consent to the search had not been given. The United States District Court granted the respondents’ motion to suppress the seized marijuana, finding that the contraband was seized as a product of a search which violated the fourth amendment warrant requirement. The First Circuit Court of Appeals affirmed. The Supreme Court also affirmed, holding that the agents should have obtained a search warrant before opening the footlocker. In so holding, the court rejected two arguments advanced by the government. First, the government had asserted that a search of moveable, personal property legally seized in a public place does not require a warrant. According to the government, the search of the luggage should be viewed as being analogous to the warrantless search of a vehicle under the automobile exception. Under that exception, a search warrant is not required where police officers stop a vehicle on a street or highway based on the existence of probable cause to believe that it contains contraband or evidence of a crime. (See, e.g., Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975.) The Chadwick court refused to extend the automobile exception to all searches of luggage based on the fact that neither of the two policy considerations supporting the automobile exception apply to the search of luggage; that is, the court focused on the mobility of automobiles and the limited expectation of privacy in a vehicle. The court stated:

“The factors which diminish the privacy aspects of an automobile do not apply to respondents’ footlocker. Luggage contents are not open to the public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.” (United States v. Chadwick (1977), 433 U.S. 1, 13, 53 L. Ed. 2d 538, 549, 97 S. Ct. 2476, 2484.)

The court then rejected the government’s second argument that the warrantless search of personalty based upon probable cause was legal since the luggage searched was in the possession of persons lawfully arrested in public. The court noted that it is the potential dangers inherent in custodial arrests which obviate the need for a warrant to search the items within the immediate control of the arrestee. Since the search of the footlocker was not conducted at the time of the arrest and since the footlocker was under the government’s exclusive control, the court refused to view the search as falling within the incident-to-an-arrest exception to the fourth amendment warrant requirement.

Although the Chadwick search was not an inventory of the contents of an impounded vehicle, we find the case to be instructive as to the court’s view of the individual’s expectation of privacy in personal luggage. From the language of the opinion, we are able to glean a high privacy interest in the footlocker and, therefore, a preference for the issuance of warrants wherever possible for the search of personal luggage. We also deem important the court’s refusal to extend the automobile exception to the search of the footlocker. This refusal is consistent with the court’s earlier statement that “[t] he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” (Coolidge v. New Hampshire (1971), 403 U.S. 443, 461-62, 29 L. Ed. 2d 564, 580, 91 S. Ct. 2022, 2035.) Finally, we note that the footlocker in Chadwick was locked. It is not expressly stated that there would be a diminished expectation of privacy in the footlocker if it were unlocked. (See Allen & Schaefer, Great Expectations: Privacy Rights in Automobiles, 34 U. Miami L. Rev. 99, 138 (1979).) We do not think, however, that the court would have reached a different result if the footlocker had been unlocked.

This conclusion is supported by the Supreme Court’s more recent case of Arkansas v. Sanders (1979), 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586. In that case, Little Rock police officers, acting on a tip from a reliable informant, observed a suspect retrieve from the airport baggage claim area a green suitcase which allegedly contained marijuana. After meeting a companion, the suspect placed the suitcase in the trunk of a taxi. The officers followed the taxi and stopped the vehicle several blocks from the airport. Pursuant to the officers’ request, the taxi driver opened the trunk of the automobile. The officers then opened the suitcase and discovered over nine pounds of marijuana. They did not have a search warrant and had not obtained consent to search.

Prior to the trial on marijuana-possession charges, the respondent filed a motion to suppress the evidence found in the suitcase. The motion was denied and the respondent was subsequently convicted by a jury. The Supreme Court of Arkansas reversed the conviction, finding that no exigent circumstances were present which would justify the warrantless search of the suitcase. The United States Supreme Court agreed with the Arkansas Supreme Court in its assertion that the fact that respondent’s suitcase was unlocked did not diminish his legitimate expectation of privacy in the contents of the luggage. In its application of Chadwick, the court rejected the State’s contention that the warrantless search of the suitcase was proper under the automobile exception and held that a warrant is generally required before personal luggage can be searched. Thus, the extent to which the fourth amendment applies to luggage and other containers for personal effects does not depend upon whether the container is seized from an automobile. The court in Arkansas v. Sanders found the warrantless search of respondent’s suitcase to be unreasonable due to the lack of exigent circumstances; that is, the police officers could have lawfully detained the respondent and secured the suitcase without endangering themselves or risking the loss of the evidence.

We note that Opperman involved an inventory search of an integral part of an automobile rather than an inventory of a container. While Chadwick and Sanders involved searches of containers taken from vehicles, the searches were not conducted as inventories but were based upon probable cause. Thus, the United States Supreme Court has yet to pass on the permissible limits of inventory searches of containers taken from vehicles. However, from a reading of the Opperman, Chadwick and Sanders opinions, the following principles emerge: An inventory search of an automobile is reasonable and therefore constitutionally permissible when conducted in accordance with standard, as opposed to arbitrary, law-enforcement procedures. In order for the customary inventory search to be deemed reasonable, it must further three objectives: the protection of the owner’s interest in his property; the protection of police officers as custodians of the property from claims of loss or damage; the protection of the police from risk of harm. A warrant is generally required for the search of luggage or any other container of personal effects. The warrantless search of such a container, therefore, will be deemed unconstitutional unless it can be justified under an established exception to the warrant requirement. The mere fact that the container is found in a vehicle or is seized subsequent to an arrest based upon probable cause will be insufficient to bring the warrant-less search within the automobile exception or the search-incident-to-an-arrest exception.

In view of the above-stated principles and in light of our opinion in People v. Hamilton (1979), 74 Ill. 2d 457, we hold that the procedure of inventorying the contents of a suitcase found in a lawfully impounded vehicle is, in the absence of exigent circumstances, unreasonable and therefore in violation of the fourth amendment.

In People v. Hamilton (1979), 74 Ill. 2d 457, the defendant was injured in an automobile accident and was taken to a hospital. An inventory of his personal effects was performed by a nurse and an orderly in accordance with hospital procedure. During the course of the inventory, the orderly found a locked briefcase. He unlocked the case with a key found in the defendant’s possession and discovered a closed bag containing what he believed, upon opening and examining its contents, to be heroin. The orderly told the nurse of his discovery. The bag was returned to the suitcase and the case was locked and placed at the foot of defendant’s bed in the hospital emergency room. A police officer arrived to complete his accident report. The nurse informed the officer of some items found and stated, “You better check the briefcase.” The officer then informed the defendant that his briefcase would be returned to the disabled vehicle and his property would be inventoried. Before leaving the emergency room, however, the police officer opened the suitcase, finding the contraband.

In Hamilton we were unable to find the opening of the briefcase by the officer to be a valid inventory. First, we questioned the officer’s motive in opening the briefcase; that is, we believed that he opened the case not for the purpose of inventorying its contents but, rather, to search for contraband. We noted the high privacy interest accorded personal luggage in both the Supreme Court and First Circuit Court of Appeals opinions in the Chadwick case. We then tested the inventory against the threefold test enunciated in Opperman and utilized in our case of People v. Clark (1976), 65 Ill. 2d 169. Due to the lack of danger to the police, we found no justification for the warrantless intrusion. Accordingly, we held that the State failed to meet the fourth amendment reasonableness test and, therefore, ruled the evidence was inadmissible. After a review of the record, we fail to find the existence of facts in the case before us which would warrant a result different than that reached in Hamilton.

The State contends that the search of the suitcase was reasonable due to the following: it was conducted in accordance with standard inventory procedures; the officers did not have improper investigatory motives; the exigencies of the automobile accident necessitated the caretaking procedures exercised; and defendant’s expression of concern about an item of value justified an inventory of the contents of the suitcase. It is undisputed that the standard inventory procedure of the Johnson County sheriff’s office included the opening of closed containers. While the fact that the procedure was one customarily followed is a factor supporting a finding of reasonableness (South Dakota v. Opperman), it is not conclusive.

The high privacy interest in the contents of luggage which we noted in Hamilton, as expressed in Chadwick, was recently reaffirmed by the Supreme Court in Arkansas v. Sanders. In our opinion in Hamilton we noted that the defendant, to the best of his ability, sought to safeguard his expectation of privacy in his briefcase. In the case before us, the defendant also sought to protect his expectation of privacy by his request that the witness, Carlock, close the luggage. In considering the validity of an inventory search, the high privacy interest in the luggage must be balanced against the three objectives as enunciated in Opperman. One objective, and a possible justification for an inventory search as noted in Hamilton, the protection of the police from danger, is clearly not presented by the facts of this case. Neither the sheriff nor his deputy contended that they feared for their safety. We find that the fulfillment of the other two objectives, that is, the preservation of defendant’s property and the protection of the police from claims of lost or stolen property, could have been achieved in a less intrusive manner. As we noted in Hamilton, these two objectives could have been fulfilled by sealing the suitcase with tape and placing it in a locked locker or a storage room. Thus there were no circumstances present in this case that would justify a warrantless invasion of the defendant’s expectation of privacy.

By finding this inventory to be invalid, we do not mean to hold that all warrantless openings of closed containers during the course of an inventory search are invalid. Certain exigent circumstances, such as danger to the officers or the destruction or mobility of the evidence, may justify the opening of such containers. We are unpersuaded, however, that any such exigencies were present in this case. The fact that the items were found following a serious automobile accident does not serve to increase the mobility of the item, the danger presented to the police, or the defendant’s ability to destroy the evidence. Also, we do not view defendant’s expression of concern over the items of value and the discovery of the $1,255 as justification for the opening of the suitcase. As hereinbefore stated, valuable property could have been adequately safeguarded by keeping the container intact.

In conclusion, we find the inventory search invalid. We therefore hold that the search of the suitcase was unreasonable under the fourth amendment and that the evidence should have been suppressed. Accordingly, we affirm the judgment of the appellate court reversing defendant’s conviction.

Judgment affirmed.

MR. JUSTICE WARD,

dissenting:

The deputy testified before the trial court, which denied the defendant’s motion to suppress, that the suitcase “was probably a half an inch or three-quarters of an inch from being closed.” The deputy knew that $1,255 in bills had been found in and around the overturned vehicle and he knew that the defendant had said that there was something valuable in the suitcase that he wanted “taken care of.” The deputy testified that “the sheriff has always told us that on any wreck or tow-in that we have, that we have to make an inventory of all of the personal property, the items in any vehicle, to protect us and to protect them so that we know what’s there.”

The majority, it seems to me, takes a severely and unjustifiably restrictive view of what was held in South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092, and I consider that the trial court correctly held that the deputy did not act unreasonably in fully opening the suitcase.

MR. JUSTICE UNDERWOOD joins in this dissent.