text:
    (No. 52537.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GORDON GOODMAN, Appellant.

      Opinion filed June 20, 1980.

      Edward Neville and Ronald L. Pallmann, of East St. Louis, for appellant.
    William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Martin N. Ashley, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Gordon Goodman and Michael Bury were jointly indicted and tried in St. Clair County for a violation of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 561/2, par. 1401(a)(2)). Each defendant was sentenced to the penitentiary for a term of six years. Only Goodman, after his conviction was upheld by the appellate court, one judge dissenting (75 Ill. App. 3d 369), filed the petition for leave to appeal with this court, which was granted.

Defendant contends that hearsay evidence was erroneously admitted during the trial, that the exception to the hearsay rule for declarations by coconspirators is inapplicable to this case, and that because out-of-court statements of codefendant Bury were admitted, defendant was denied his sixth amendment right to confront witnesses. We affirm the appellate court.

The facts, well stated in the appellate court opinion, will be summarized only in the detail necessary to illuminate the legal issue involved. An undercover police officer, Lonnie Inlow, had made arrangements, after extensive negotiations with codefendant Bury, to purchase $2,700 worth of cocaine to be supplied by an unidentified contact. This purchase took place at approximately 7:15 p.m. on March 14, 1978, inside Jacks or Better restaurant. Jacks or Better is located in Fairview Heights.

Undercover agents watched the outside of the restaurant. Other undercover agents stationed themselves at a table next to the one where agent Inlow sat alone waiting for Bury. Defendant Goodman was seen to drive up to the restaurant, followed soon by codefendant Bury, accompanied by another individual who has no connection to this case. Bury, Goodman and the third individual entered the restaurant together and sat down at Inlow’s table.

From this point, matters were disputed. Inlow remembered Bury saying he had the cocaine and was in a hurry, whereas the defendant’s testimony implied that Bury’s comments were so ambiguous as to leave him unaware of what was transpiring. It is agreed that one round of drinks was ordered and served and that soon afterward Bury and Inlow went outside to consummate the sale. There Inlow demanded an opportunity to test the purported cocaine and Bury agreed only upon receipt of a $1,000 down payment for his contact. Bury went back inside the restaurant to try to make the appropriate arrangements.

The surveillance agents at the next table recounted that Bury came back in the restaurant, sat down and talked with Goodman for three or four minutes, and that the conversation culminated with Goodman’s affirmative nod of the head and with Bury leaving a stack of money on the table, which was “palmed” by Goodman into his right pants pocket. Goodman said, in contrast, that Bury came back in, remained standing, said he was going some place and asked him to watch his money, which was thrown on the table. When Goodman saw the $100 denominations, he said he got nervous and put it in his pocket for safekeeping. The conversation with Bury, he said, lasted only one or two minutes.

The evidence complained of concerned agent Inlow’s conversations with codefendant Bury prior to and during the sale. Bury did not testify. In these conversations agent Inlow quoted Bury as saying that his contact lived in rural Okawville in a trailer and had disconnected his phone out of fear of a wiretap. Goodman lived in a trailer in Okawville and had reconnected his telephone only recently. (Goodman said his phone was disconnected when he was laid off from work.) When Inlow and Bury went outside the restaurant on the night of the sale and when Inlow asked to test the cocaine, Bury said, “My man would freak if I left with his cocaine.” It was in response to this comment that Inlow offered the $1,000 as security.

Defendant has accepted the traditional formulation of the deciarations-of-coconspirators exception to the hearsay rule: such declarations are admissible against all conspirators upon an independent, prima facie evidentiary showing of a conspiracy or joint venture between the declarant and one of the other defendants, insofar as such declarations are made in furtherance of and during the pendency of the conspiracy, even in the absence of a conspiracy indictment. (United States v. Nixon (1974), 418 U.S. 683, 701 & n.14, 41 L. Ed. 2d 1039, 1060 & n.14, 94 S. Ct. 3090, 3104 & n.14; Anderson v. United States (1974), 417 U.S. 211, 218, 41 L. Ed. 2d 20, 28, 94 S. Ct. 2253, 2259; People v. Davis (1970), 46 Ill. 2d 554, 558-59; People v. Parson (1963), 27 Ill. 2d 263; see generally, Levie, Hearsay and Conspiracy, A Reexamination of the Co-Conspirators’ Exception to the Hearsay Rule, 52 Mich. L. Rev. 1159 (1954); Comment, The Hearsay Exception For Co-Conspirators’ Declarations, 25 U. Chi. L. Rev. 530 (1958); Comment, Reconstructing the Independent Evidence Requirement of the Coconspirator Hearsay Exception, 127 U. Pa. L. Rev. 1439 (1979).) Defendant contends only that there was insufficient independent evidence to make a prima facie case of the existence of a conspiracy between Goodman and Bury and that the coconspirators exception, as applied here, violates the ruling of the United States Supreme Court in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.

There was sufficient independent evidence of conspiracy. Goodman admitted he had been a very close friend of Bury for over 10 years. According to Inlow, Bury announced that he had the cocaine in Goodman’s presence, negating defendant’s claim of ignorance of the nature of the transaction. Bury and Goodman were seen in discussion after Inlow requested a test of the cocaine and offered $1,000 as security. Goodman was seen to affirmatively nod his head to Bury and to receive $1,000 in cash. (This money was marked and was found on Goodman when he was arrested.) This is evidence from which an agreement to sell cocaine could be inferred. Therefore, because a sufficient prima facie case of conspiracy was shown by independent evidence, the evidence was properly admitted. (It is preferable for the independent evidence of conspiracy to be introduced prior to the admission of a coconspirator’s declarations (see United States v. James (5th Cir. 1979), 590 F.2d 575, 581-82), but there is no mandatory rule to this effect.)

The admission of Bury’s declarations, further, was not contrary to Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. This court fully discussed this issue in People v. Davis (1970), 46 Ill. 2d 554, 557-59, where it was held that evidence admissible under the coconspirator exception to the hearsay rule did not violate the confrontation clause of the sixth amendment because defendants were able to confront and cross-examine witnesses who alleged that the statements at issue were made.

Since Davis was decided, the United States Supreme Court considered again the relationship of the confrontation clause to the hearsay rule in Dutton v. Evans (1970), 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210.

In Dutton a plurality of the court upheld the application of a Georgia statute permitting the admission of co-conspirators’ out-of-court declarations made during the concealment phase of a conspiracy. The court manifested “a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ [Citation.] ” (400 U.S. 74, 89, 27 L. Ed. 2d 213, 227, 91 S. Ct. 210, 220.) Because (1) the statement was not an assertion about a past fact, (2) abundant evidence showed that the declarant had personal knowledge of the incident, (3) it was unlikely that the declarant’s statement was founded upon faulty recollection and (4) the statement made was spontaneous and against the declarant’s penal interest, it was not so unreliable as to warrant its exclusion from evidence. (400 U.S. 74, 88-89, 27 L. Ed. 2d 213, 227, 91 S. Ct. 210, 219.) It also was noted that the statements at issue were not crucial or devastating and that the defendant was able to cross-examine the person who contended that the statement was made. (400 U.S. 74, 87-88, 27 L. Ed. 2d 213, 226, 91 S. Ct. 210, 219.) Mr. Justice Harlan, concurring, eschewed reliance upon the confrontation clause in favor of the due process clause and wrote that the declaration was admissible out of necessity and because of indicia of trustworthiness. 400 U.S. 74, 93-100, 27 L. Ed. 2d 213, 229-33, 91 S. Ct. 210, 222-25.

This case bolsters our opinion in People v. Davis (1970), 46 Ill. 2d 554, and supports our determination that the statements made by Bury in the instant case were admissible. The declarations themselves were made in furtherance of and during the pendency of the conspiracy and were not self-serving. (See Levie, Hearsay and Conspiracy, A Reexamination of the Co-Conspirator’s Exception to the Hearsay Rule, 52 Mich. L. Rev. 1159, 1167-72 (1954).) Bury himself had knowledge of the salient facts, and it is wholly unlikely that his recollection was faulty. Many of these declarations, moreover, were made spontaneously and all were against his penal interest. (Cf. Chambers v. Mississippi (1973), 410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 312, 93 S. Ct. 1038, 1048.) The defendant was able to cross-examine the officer who contended that the statements were made. The statements themselves were not devastating assertions about past facts but were, rather, only inferentially inculpatory assertions about contemporaneous events.

For the foregoing reasons we affirm the appellate court.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 52534.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHRIS POLL, Appellee.

      Opinion filed, June 20, 1980.

    William J. Scott, Attorney General, of Springfield, and Thomas Difanis, State’s Attorney, of Urbana (Donald Mackay and Melbourne A. Noel, Jr., of Chicago, and Steven J. Teplinsky, of Springfield, Assistant Attorneys General, and Marc D. Towler and Robert J. Biderm an, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, and Kame Munoz, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In the circuit court of Champaign County, a jury found defendant, Chris Poll, guilty of attempted burglary and armed violence. He was sentenced to a term of three to nine years for attempted burglary and to a concurrent term of one to three years for armed violence. The appellate court affirmed the convictions but remanded for a new sentencing hearing based on its finding that evidence of pending charges against defendant was improperly admitted at the sentencing hearing. (74 Ill. App. 3d 534.) We granted the State leave to appeal.

After defendant’s conviction, a hearing in aggravation and mitigation was conducted. A presentence report, submitted to the court, listed the history of defendant’s prior convictions. In February 1975 defendant had been placed on probation after being adjudicated a delinquent based upon his illegal possession of alcohol and a violation of the curfew law. In May 1975 defendant, as an adult, was convicted of aggravated battery and sentenced to six months’ incarceration. In January 1976 he was convicted of two unrelated burglaries and sentenced to 2 to 10 years’ imprisonment for each occurrence, the terms to run concurrently. In July 1978 he was found guilty of escape and sentenced to four years in prison.

The presentence report also listed three charges which were currently pending against defendant: (1) unlawful use of weapons (originally included in the present action as a separate count but severed before trial); (2) battery; and (3) conspiracy to escape from the county jail.

At the hearing, the State called Jeffrey Rodgers, a former cell mate of the defendant, to testify concerning the pending battery charge. The defense counsel objected to the introduction of any evidence relating to charges pending against defendant. The objection was overruled. Rodgers testified that he had asked to be transferred from defendant’s cell because “physical violence was starting”; that as he was packing his belongings, defendant “jumped” on him, gave him “a grazing blow to [his] head,” and started a scuffle on the floor. The State then introduced the testimony of Ronald Carper, a deputy sheriff, who testified that he had observed the alleged battery involving Rodgers. He related that defendant was “trying to antagonize” Rodgers and that defendant had struck Rodgers in the face. The defense stipulated that the testimony of the State’s next witness, Ken Roderick, a jailer at the county jail, would be substantially the same as the testimony of deputy sheriff Carper concerning the battery incident.

The State’s next witness, Paul Pope, a deputy sheriff, testified to the circumstances surrounding a written statement made by defendant on August 12, 1978, concerning his involvement in a conspiracy to escape from the Champaign County jail. This statement was the basis for the State’s then-pending charge of conspiracy. In the interest of conserving the court’s time, defense counsel stipulated to the foundation testimony and allowed the State to introduce defendant’s written statement, admitting his involvement in the conspiracy to escape. Also admitted, by stipulation, were hacksaw blades found in a paper bag outside the county jail.

Defense counsel cross-examined each of the State’s witnesses and was given the opportunity to present evidence. The only evidence offered by the defendant in mitigation was a letter from Dr. Daniel Pugh, a physchiatrist, which letter indicated that defendant suffered from multiple drug dependencies and alcoholism.

Before announcing the sentence, the judge stated:

“ [T] he defendant has elected to be sentenced under the law in effect prior to February 1, 1978, and under that law, of course, probation is an alternative. I’ve considered all the factors in aggravation that have been called to the court’s attention and any factors in mitigation. I find nothing really to mitigate the conduct of the defend- and and based on the record of the prior convictions of this defendant I certainly don’t believe that probation is a viable alternative.” (Emphasis added.)

The appellate court held that it was error in a sentencing hearing to admit evidence of pending charges without the consent of the defendant. The defendant relies on the appellate court’s conclusion that the admission of such evidence without his consent is a violation of the right to a trial by jury as well as the right to be proved guilty beyond a reasonable doubt. The State argues that the defendant’s claim that his rights were violated is baseless in that the record clearly shows that the evidence of charges pending against the defendant was not relied on by the judge in imposing sentence. The State further argues that even if such evidence was considered by the judge in sentencing, there was no reversible error because evidence of pending criminal charges may, under certain circumstances, be properly introduced in aggravation during a sentencing hearing.

We agree with the State’s contentions. The defendant may not claim that his rights were violated by the introduction of evidence of pending charges since the judge did not consider such evidence in imposing sentence. Before announcing the defendant’s sentence, the judge expressly stated that he was basing his decision “on the record of the prior convictions of this defendant.” No mention was made of any reliance on the evidence introduced concerning the criminal charges pending at that time. Since such evidence was not used in imposing sentence, defendant’s claimed error is without merit.

We also agree with the State’s position that, even if the judge had considered the evidence of the defendant’s pending charges, the introduction of evidence concerning such charges would not be reversible error under the facts and circumstances of this case. See Roberts v. United States (1980), 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358; People v. Bey (1972), 51 Ill. 2d 262; People v. Kelley (1970), 44 Ill. 2d 315; People v. Adkins (1968), 41 Ill. 2d 297; People v. O’Neil (1960), 18 Ill. 2d 461.

For these reasons, that part of the judgment of the appellate court which remanded this cause to the trial court for resentencing is vacated, and the judgment of the circuit court of Champaign County is affirmed.

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


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE CLARK,

text:
    (No. 53511.
    S. N. NIELSEN COMPANY, Appellant, v. THE PUBLIC BUILDING COMMISSION OF CHICAGO et al., Appellees.

      Opinion filed July 11, 1980.

      CLARK, UNDERWOOD and RYAN, JJ., dissenting.
    O’Brien, Carey, McNamara, Scheuneman & Campbell, Ltd., of Chicago (Peter B. Carey, Tom Scheuneman, William J. Campbell, Jr., Peter Petrakis, and Timothy J. McGonegle, of counsel), for appellant.
    William R. Quinlan, Corporation Counsel, of Chicago (Robert R. Retke and Maureen J. Kelly, Assistant Corporation Counsel, of counsel), for appellees Public Building Commission of Chicago and Brian M. Kilgallon.

      Patrick W. O’Brien, Eugene E. Gozdecki, Gary T. Johnson, and C. Frederick LeBaron, of Mayer, Brown & Platt, of Chicago, for appellee Del E. Webb Corporation.
    George L. Siegel, of Arvey, Hodes, Costello & Burman, of Chicago for amicus curiae Board of Trustees of Community College District No. 508.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This action was filed by plaintiff, S. N. Nielsen Company, seeking a determination that it is entitled to the contract for the construction of the New Loop and City Wide College, to be located in downtown Chicago. The circuit court of Cook County agreed with plaintiff that the bidding formula used by the defendant Public Building Commission was unlawful, but it refused to grant the relief requested. We allowed plaintiff’s motion for direct appeal. 73 Ill. 2d R. 302(b).

Plaintiff, S. N. Nielsen Company, and defendant Del E. Webb Corporation are general contractors in the construction industry. Both submitted bids in response to the defendant Public Building Commission’s April 11, 1980, advertisement for bids for the construction of the New Loop and City Wide College, 30 E. Lake St., Chicago. On May 15, 1980, the Commission opened the bids of Nielsen, Webb, and five other bidders. Nielsen’s bid of $19,130,000 was lowest, and Webb’s bid of $19,320,000 was third lowest. By resolution of May 20, 1980, however, the Commission awarded the contract to Webb on the basis of its application of the Commission’s so-called “canvassing formula” under which a bidder receives credits for the percentage of hours worked by minority members not in excess of 50% of the total hours worked on the project. These credits are subtracted from the contractor’s bid, and the result is denominated the “award criteria figure.” The formula is included in bidding documents distributed to interested contractors, and the contractors calculate their own minority credits. The formula, as contained in the bidding documents, is set out below:

CANVASSING FORMULA
Line 1. Base Bid, in figures ______
Line 2. Percentage of the journeymen hours that the Contractor proposes to be worked by minority journeymen during construction of the project ______
Line 3. Multiply line 2 by line 1 by 0.04 ______
Line 4. Percentage of the total apprentice manhours that the Contractor proposes to be worked by minority apprentices during construction of the project _______
Line 5. Multiply line 4 by line 1 by 0.03 ______
Line 6. Percentage of the total laborer manhours that the Contractor proposes to be worked by minority laborers during construction of the project ______
Line 7. Multiply line 6 by line 1 by .01 ______
Line 8. Summation of lines 3, 5, and 7 ______
Line 9. Subtract line 8 from line 1 = ______
Award Criteria Figure ______

The formula was taken verbatim from a form used by the city of Chicago. We also are informed that the Commission began using the formula as early as 1974 but that no resolution was passed formally adopting the formula. Nielsen, however, does not attack the Commission’s failure to pass such a resolution and has stipulated that the case is not thereby affected in any manner.

After application of the formula, the bidder with the lowest award criteria figure is awarded the contract. The award criteria figure, however, is used only to determine which contractor receives the contract; the contract is actually performed for the amount specified in the contractor’s bid. Through application of the formula, it was determined that Webb had the lowest award criteria figure, $18,547,200, and that Nielsen had the second lowest such figure, $18,565,000. Webb was accordingly awarded the contract, to be performed at its bid price of $19,320,000, a figure $190,000 in excess of that specified by Nielsen.

That same day, May 20, Nielsen filed suit, alleging that the Commission’s award to Webb violates the Commission’s bidding statute. In its complaint, Nielsen sought declaratory and injunctive relief and a writ of mandamus directing the Commission to comply with its bidding statute and to award the contract to Nielsen. The bidding statute, section 20 of the Public Building Commission Act, provides in pertinent part that the Commission’s contracts “shall be let to the lowest responsible bidder.” (Ill. Rev. Stat. 1979, ch. 85, par. 1050.) Nielsen does not contend that the formula used by the Commission is arbitrary or that it unlawfully discriminates against non-minorities. Similarly, Nielsen does not contest the desirability of increased minority representation in public works projects.

On May 23, 1980, the circuit court entered a 10-day temporary restraining order, restraining the Commission and Webb from executing the awarded contract and from engaging in any construction thereunder. On May 30, the circuit court ruled that the Commission’s use of the formula resulted in a conflict with its bidding statute, section 20 of the Public Building Commission Act, providing that contracts be awarded to the lowest responsible bidder. The court therefore held that use of the formula was unlawful. The court, however, dissolved its restraining order and denied Nielsen the requested declaratory and injunctive relief and writ of mandamus, reasoning that Nielsen could sue at law for lost profits and that the rights of members of the public not before the court — the City College Board and minority members — might be adversely affected. This appeal by Nielsen followed, and the Commission cross-appealed from the circuit court’s ruling that the Commission’s use of the canvassing formula is unlawful.

Nielsen argues initially that the Public Building Commission, a creature of statute (Ill. Rev. Stat. 1979, ch. 85, par. 1031 et seq.), possesses only the authority granted therein (Ill. Const. 1970, art. VII, sec. 8). Citing cases from this and other jurisdictions, Nielsen argues that the Commission cannot, without legislative authority, implement its own notions of desirable public policy and thereby inject its minorities canvassing formula into its bidding process. (See, e.g., Holden v. City of Alton (1899), 179 Ill. 318; Fullilove v. Beame (1979), 48 N.Y.2d 376, 398 N.E.2d 765, 423 N.Y.S.2d 144.) The Commission and Webb argue in response that authorization for the formula is found in the affirmative action provisions of the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.) and that a contractor’s affirmative action efforts should be taken into account in determining whether that contractor is the “lowest responsible bidder” within the meaning of the Commission’s bidding statute. We agree and accordingly reverse the circuit court’s ruling that the formula is unlawful, and we affirm its decision not to disturb the award to Webb.

Section 3 of the Fair Employment Practices Act provides in pertinent part:

“Unfair employment practices. It is an unfair employment practice:
(a) For any employer, because of the race, color, religion, sex, national origin, ancestry or physical or mental handicap unrelated to ability of an individual, or an unfavorable discharge from military service, to refuse to hire, to segregate, or otherwise to discriminate against such individual with respect to hire, selection and training for apprenticeship in any trade or craft, tenure, terms or conditions of employment ***.” (Ill. Rev. Stat. 1979, ch. 48, par. 853(a).)

Section 4 of the Act, however, requires more and provides that a showing of affirmative action is a precondition to obtaining a public contract. That section provides:

“Public contracts. Every contract to which the State, any of its political subdivisions or any municipal corporation is a party shall be conditioned upon the requirement that the supplier of materials or services or the contractor and his subcontractors, and all labor organizations furnishing skilled, unskilled, and craft union skilled labor, or who may perform any such labor or services, as the case may be, shall not commit an unfair employment practice in this State as defined in this Act, and shall take affirmative action to insure that no unfair employment practice is committed.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 48, par. 854.)

The Public Building Commission, a municipal corporation (Ill. Rev. Stat. 1979, ch. 85, par. 1044), is clearly governed by section 4 and is thereby authorized to implement affirmative action requirements in the letting of its contracts “to insure” that no discrimination is practiced against minorities in employment decisions. (See John N. Brunsfeld & Sons, Inc. v. Board of Education (1977), 54 Ill. App. 3d 119, 123-25, and cases cited therein.) Though not in effect at the time of the bidding here in question, we also note that the new Illinois Human Rights Act, repealing the Fair Employment Practices Act and recodifying its affirmative action provisions effective July 1, 1980, similarly provides:

“Equal Employment Opportunities; Affirmative Action.
(A) Public Contracts. Every party to a public contract shall:
(1) Refrain from unlawful discrimination in employment and undertake affirmative action to assure equality of employment opportunity and eliminate the effects of past discrimination;
(2) Comply with the procedures and requirements of the Department’s regulations concerning equal employment and affirmative action;
(3) Provide such information, with respect to its employees and applicants for employment, and assistance as the Department may reasonably request.” (Emphasis added.) Ill. Rev. Stat., 1979 Supp., ch. 68, par. 2 — 105(A)(1).

Nielsen disputes the interpretation of section 4 of the Fair Employment Practices Act set out above, suggesting instead that the section “merely requires contractors to refrain from active discriminatory hiring practices, nothing more.” Such an interpretation, we believe, simply ignores the plain meaning of the section. “The obligation to take affirmative action imports more than the negative obligation not to discriminate.” (Southern Illinois Builders Association v. Ogilvie (7th Cir. 1972), 471 F.2d 680, 684.) Nielsen’s interpretation might indicate that there exists some disagreement as to the plain meaning of the section, but to the extent that the section may be considered ambiguous, it should be remembered that remedial legislation should be construed liberally to effectuate its purposes. Zehender & Factor, Inc. v. Murphy (1944), 386 Ill. 258, 263.

We also do not agree with plaintiff that the express mention of affirmative action programs in the bidding statute of the Metropolitan Sanitary District of Greater Chicago (Ill. Rev. Stat. 1979, ch. 42, par. 331.3) indicates the General Assembly’s intention that the Public Building Commission not implement such a program. Our cases establish that this sort of “negative inference” is not one that we should draw, especially in light of a contrary expression of legislative intent such as that found in section 4 of the Fair Employment Practices Act. Concrete Contractors’ Association v. Village of La Grange Park (1958), 14 Ill. 2d 65, 72.

Finally, Nielsen makes the argument that the Commission’s canvassing formula must fall because its application results in the award of contracts to one other than the lowest responsible bidder. It is Nielsen’s position that a contractor’s commitment to affirmative action has nothing to do with whether it is responsible. The word “responsible” has previously been interpreted in the decisions of this State to mean financially responsible and able to discharge one’s obligations “in accordance with what may be expected or demanded under the terms of the contract.” (People ex rel. Peterson v. Omen (1919), 290 Ill. 59, 67. See also Hallett v. City of Elgin (1912), 254 Ill. 343, 346-47; People ex rel. Assyrian Asphalt Co. v. Kent (1896), 160 Ill. 655, 661-62.) We believe, however, that a contractor’s commitment to affirmative action is something that “may be expected or demanded under the terms of the contract” within the meaning of the cases above cited. Antidiscrimination statutes such as section 4 of the Fair Employment Practices Act indicate the legislature’s intention that, in public contracting, the social responsibility of the contractor should also be a concern. Financial responsibility and the ability to perform the contract are therefore not the only relevant factors, and the fact that a contractor submits the lowest bid will not automatically require that the contract be awarded to that contractor. As McQuillin states in his treatise on municipal corporations, “In proper circumstances a contract may be awarded to one who is not the lowest bidder, where this is done in the public interest, in the exercise of discretionary power granted under the laws, without fraud, unfair dealing, or favoritism, and where there is a sound and reasonable basis for the award as made.” (10 E. McQuillin, Municipal Corporations sec. 29.73a, at 429-30 (3d ed. 1966).) Though none of the cases cited by McQuillin involve a contractor who obtained an award because of the operation of an affirmative action plan, we believe that such a situation is within the intendment of the quoted passage. As one court has said, speaking of the Federal antidiscrimination and bidding statutes and those of its own State:

“It may be argued that requiring public contractors to take affirmative action to forestall discriminatory employment practices in the performance of their contracts will tend to raise the cost of such contracts. Increased costs impair another governmental interest, that of economy.
It must be noted, however, that neither state nor federal contracts are secured only to the lowest bidder, but to the lowest and best bidder [citation] and lowest responsible bidder [citation]. Moreover, the alternative of securing a like degree of compliance with equal employment opportunity laws by means of public prosecutions and administrative proceedings is also costly and, in addition, is both post hoc and punitive. Indeed, it might reasonably be supposed that the governmental objectives of equal employment opportunity and low-cost public construction would be better served by requiring public contractors to undertake affirmative duties in practicing nondiscrimination in their dealings with and through others in the performance of the contract, thereby denying the benefits of public contract expenditures to those who would discriminate.
In addition to economics as a reason for requiring public contractors to assure nondiscriminatory performance, the strong moral commitment of both state and federal government to fair employment practices is reflected in their respective legislation. A government which has declared discriminatory employment practices unlawful should not then finance them indirectly by binding only its direct contractor, and not the entire contract performance, to a promise of attempted compliance. We conclude that the capacity to assure a performance which complies with antidiscrimination laws is reasonably a part of the standard of a best or responsible bidder on a contract involving the expenditure of public funds. Accordingly, a bidder for a construction contract to be awarded by a public body of this state may be required to assure, by appropriate promises contained in contract provisions or related instruments, nondiscrimination in employment in the entire performance of the contract.” (Emphasis in original.) Weiner v. Cuyahoga Community College District (1969), 19 Ohio St. 2d 35, 38-39, 249 N.E.2d 907, 910, cert, denied (1970), 396 U.S. 1004, 24 L. Ed. 2d 495, 90 S. Gt. 554:

For the foregoing reasons, we hold that the circuit court erred in ruling that the minorities canvassing formula used by the Public Building Commission in awarding its contracts is unlawful. We further hold that the circuit court correctly refused to order that the contract for the construction of the New Loop and City Wide College be awarded to plaintiff, S. N. Nielsen Company.

Affirmed in part and reversed in part.

MR. JUSTICE CLARK,

dissenting:

I must dissent because the result reached in this case is incorrect. While I certainly agree with the majority that a governmental agency may be empowered to implement affirmative action requirements (see, e.g., Fullilove v. Klutznick (1980), 448 U.S.---, 65 L. Ed. 2d 902, 100 S. Ct. 2758), the agency must do so in a proper and legally cognizable way. It cannot simply impose an ad hoc canvassing formula on public contractors without the benefit of clear legislative authority and the formal adoption of a resolution by the agency. The majority has granted a governmental agency the unchecked power to set down arbitrary guidelines without need of direction from the legislature or publication by the agency. While I recognize that Nielsen did not raise the issue of the failure of the Commission to pass a resolution (81 Ill. 2d at 294), that does not prevent this court from inquiring into whether any authority existed for the Commission to act.

Recently this court decided Craddock v. Board of Education (1980), 81 Ill. 2d 28. In that case a teacher was suspended by a school board because he cursed at a student. The school board argued that it derived its authority to suspend the teacher from the rulemaking authority granted to school boards in section 10 — 20.5 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 10 — 20.5). The school board never adopted any such rule, however. We stated in Craddock that since the school board did not exercise its rulemaking authority to adopt a rule suspending teachers for specified infractions, it lacked the authority to suspend the teacher. (81 Ill. 2d 28, 31.) The same principle applies here. An agency cannot excuse its ad hoc actions by stating that it could have passed a rule, resolution or regulation prospectively authorizing the particular action. To do so opens the way for any number of ex post facto acts by governmental agencies, a prospect that is ominous to say the least. Such a prospect was repudiated in Craddock, yet it has gained acceptance by the majority in the instant case.

Furthermore, one need only look to the United States Supreme Court’s recent decision in Fullilove v. Klutznick to observe the invalidity of the Commission’s action in this case. At issue in Fullilove was the constitutional and statutory validity of section 103(f)(2) of the Public Works Employment Act of 1977 (42 U.S.C. sec. 6705(f)(2) (1977 Supp. I)). That section provides:

“Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises. For purposes of this paragraph, the term ‘minority business enterprise’ means a business at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members. For the purposes of the preceding sentence, minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.” (Public Works Employment Act sec. 103(f)(2), (42 U.S.C. sec. 6705(f)(2) (1977 Supp I).)

As required by the Public Works Employment Act of 1977, the Secretary of Commerce promulgated extensive regulations. (13 C.F.R. part 317 (1978).) “Where competitive bidding is employed, the regulations echo the statute’s requirement that contracts are to be awarded on the basis of the ‘lowest responsive bid submitted by a bidder meeting established criteria of responsibility,’ and they also restate the MBE [minority business enterprise] requirement.” (448 U.S.---,---, 65 L. Ed. 2d 902, 918, 100 S. Ct. 2758, 2769-70.) (I note parenthetically that a responsive bid is different from a responsible bid. Responsive, presumably, means in accord with the minority business enterprise requirements contained in the applicable regulations; the meaning of responsible as construed in this State will be hereinafter discussed.) The court, in upholding the validity of section 103(f)(2) of the 1977 act, noted that the regulations provided that the lowest responsive bid requirement could be waived where minority business enterprises submitted a bid which was higher than other bids, but where the higher bid was attributable “to the minority firm’s attempt to cover costs inflated by the present effects of disadvantage or discrimination.” (448 U.S.---,---, 65 L. Ed. 2d 902, 919, 100 S. Ct. 2758, 2771.) Only then was the court satisfied that the legislative authority, accompanied by “administrative scrutiny” and “surveillance” of the minority business contracting program, was lawful and constitutional. 448 U.S.---,---, 65 L. Ed. 2d 902, 930-31, 100 S. Ct. 2758, 2779-80.

While no constitutional issues were raised in this case, I think Fullilove is supportive of the general proposition that a governmental agency must act within clearly established and narrowly defined administrative bounds where imposing contracting conditions based on race. As the court stated in Fullilove:

“The history of governmental tolerance of practices using racial or ethnic criteria for the purpose or with the effect of imposing an invidious discrimination must alert us to the deleterious effects of even benign racial or ethnic classifications when they stray from narrow remedial justifications. Even in the context of a facial challenge such as is presented in this case, the MBE provision cannot pass muster unless, with due account for its administrative program, it provides a reasonable assurance that application of racial or ethnic criteria will be limited to accomplishing the remedial objectives of Congress and that misapplications of the program will be promptly and adequately remedied administratively.” (448 U.S. ---,---, 65 L. Ed. 2d 902, 929-30, 100 S. Ct. 2758, 2779.)

Since the formula herein is imposed on an ad hoc basis, without any administrative guidelines, standards or restrictions, I dissent from the majority’s blanket approbation of it.

A second flaw in the majority opinion is that it reads section 20 of the Public Building Commission Act (Ill. Rev. Stat. 1979, ch. 85, par. 1050) and section 4 of the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 854) in pari materia based solely on the majority’s vision of social betterment. What is ignored by the majority is that the two statutes involved deal with different but equally important and valuable goals, as enunciated by the General Assembly. It is beyond the purview of this court to decide that one statute is more valuable than the other. Yet that is precisely what has occurred here. Section 20 requires that a party who receives a contract must have submitted the lowest bid during competitive bidding and that the party must be financially capable of performing its obligations under the contract. Two important legislative goals are thereby furthered: first, public revenues are not squandered; and second the State obtains reasonable assurance that it will not need to sue the contractor for the breach of its duty to perform under the contract. As the majority points out, these laudable goals are well entrenched in our law. (See People ex rel. Peterson v. Omen (1919), 290 Ill. 59; Hallen v. City of Elgin (1912), 254 Ill. 343 People ex rel. Assyrian Asphalt Co. v. Kent (1896), 160 Ill. 655.) For some inexplicable reason, however, the majority has now added the vague requirement to section 20 that a bidder be “socially” responsible, and has thus, in one fell swoop, erased 84 years of law in this State. What bewilders me is why this drastic action was necessary. The clear import of section 4 of the Fair Employment Practices Act requires that any person who contracts with the State or any of its political subdivisions or any municipal corporation “take affirmative action to insure that no unfair employment practice is committed.” (Ill. Rev. Stat. 1979, ch. 48, par. 854). Therefore, the valuable goal sought to be furthered by the legislature of encouraging minority representation in companies which obtain public contracts is clearly provided for in section 4. There is no need to superimpose that requirement on section 20 of the Public Building Commission Act.

Another serious discrepancy in this case is that the majority relies on the new Illinois Human Rights Act, which the majority concedes was not in effect when this case arose. It should be emphasized that the significant addition to existing law is the following excerpt from the new act:

“(A) Public Contracts. Every party to a public contract shall:
***
(2) Comply with the procedures and requirements of the Department’s regulations concerning equal employment and affirmative action; ***.” (Ill. Rev. Stat., 1979 Supp., ch. 68, par. 2 — 105(A)(2).)

The new act obviously contemplates the adoption of regulations governing the letting of public contracts, an essential requirement apparently overlooked by the Commission and the majority. Thus, it is a source of amazement to me that the majority could approve the instant program which operates without any regulations.

The approach which is most consistent with both existing law and logic is for the Commission, first, to establish which is the lowest responsible bid. Section 20 is mandatory in its terms and may be objectively applied. Either a contractor submits the lowest bid and establishes financial solvency or he does not. No discretion need be involved. Next, the Commission may decide, by means of formally adopted, published standards, a range of acceptable levels of minority representation. These standards could, as in Fullilove v. Klutznick (1980), 448 U.S.---, ---, 65 L. Ed. 2d 902, 919, 100 S. Ct. 2758, 2771, take into account exceptional circumstances warranting more or less minority representation, waivers, exemptions and so forth. The point is that first the lowest-responsible-bidder requirement must be met and then the precondition of assuring that the employer-contractor had undertaken affirmative action must be fulfilled. In that way, both statutes will be followed and all of the pertinent legislative goals will be furthered, instead of one statute being followed to the neglect or misinterpretation of another.

Applying the foregoing approach, Nielsen should have received the contract in the instant case. Nielsen submitted the lowest bid; Nielsen’s affirmative action plan proposed that 3.5% of its apprentices and journeymen would be minority members, whereas 50% of its laborers would be minority workers. Webb proposed that 50% of its apprentices, journeymen and laborers would be minority members. Thus, it could hardly be said that Nielsen’s bid was unfair, or that it differed greatly from Webb’s. Also, there is no indication and no claim has been made by Webb but that Nielsen was in full compliance with section 4 of the Fair Employment Practices Act. Thus, Nielsen was the only bidder which complied with all of the statutory requirements. Therefore, Nielsen has been erroneously deprived of the contract.

In conclusion, the majority has approved the unguided use of power of a governmental agency in violation of one of our own decisions and the Supreme Court’s decision in Fullilove v. Klutznick. Furthermore, the majority has, by a strained interpretation, altered the meaning of section 20 of the Public Building Commission Act. The end result is that a party which met all the statutory requirements has been denied a public contract while a party which met only one requirement has received the contract. I believe this decision is a departure from sound judicial interpretation and an exercise in legislating which is wholly unwarranted. I therefore dissent.

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


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52051.
    GERALD BOYTOR, Appellant, v. THE CITY OF AURORA et al., Appellees.

      Opinion filed May 22, 1980.

    Rehearing denied September 26, 1980.

      Marc E. Webbies, of Geneva, for appellant.
    J. Robert Murphy, Corporation Counsel, of Aurora, for appellee City of Aurora.
    Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora (Peter K. Wilson, Jr., of counsel), for appellee Aurora Election Commission.
    Suzan Sutherland, of Springfield, for amicus curiae State Board of Elections.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The plaintiff, Gerald Boytor, brought suit in the circuit court of Kane County requesting a declaratory judgment, injunctive relief, and personal damages against the defendants for alleged violations of the election laws. The trial court granted defendants’ pretrial motion to dismiss, the appellate court affirmed (70 Ill. App. 3d 303), and we granted leave to appeal. We affirm.

The series of events from which plaintiff’s alleged cause of action arises commenced in November of 1976 when the citizens of Aurora elected to adopt a mayoraldermanic form of municipal government in place of the commission form which they had used previously. On the following December 7, the city council voted to submit a proposal to the citizens of Aurora at a referendum on January 11, 1977. The referendum posed the question:

“Shall all municipal elections in the City of Aurora be conducted on a non-partisan basis, with a primary election on the first Tuesday of March and a general election on the first Tuesday of April in 1977, and with all future primaries held on the dates set forth in the Illinois Election Code.”

On December 11, plaintiff submitted his nominating petition for the primary to determine the Democratic candidate for mayor. No one else submitted a partisan nominating petition, and on December 28 the Aurora election commission voted not to hold a partisan primary because there was “no duplication of candidates to require such a primary.”

The referendum was held on January 11, 1977, and the proposal was adopted. Subsequently a nonpartisan primary was held, but plaintiff’s name did not appear on the ballot. Plaintiff had filed objections to several nonpartisan nominating petitions, but the objections were overruled and plaintiff did not pursue the matter. Instead, he filed suit against the city of Aurora and the Aurora election commission on July 8. The complaint recites several allegedly illegal acts by the defendants which deprived plaintiff of the opportunity to appear on the primary ballot. Whether these acts were illegal depended on whether the referendum was properly held and whether the city had the authority to hold nonpartisan elections under a mayor-aldermanic form of municipal government. The plaintiff sought three forms of relief: a declaratory judgment that the acts of the defendants recited in the complaint were illegal; an injunction prohibiting such acts in the future; and personal damages resulting from the denial of plaintiff’s attempt to appear on the primary ballot. Plaintiff did not challenge the actual mayoral election or the authority of the elected city government.

The defendants’ motion to dismiss was allowed, the trial court concluding that the acts set forth in the complaint were within the power of the city. The appellate court affirmed (70 Ill. App. 3d 303) but on different grounds. The appellate court majority reasoned that the plaintiff lacked standing because he waited too long to bring the suit. The newly elected city officials had managed the municipal affairs for several months, the plaintiff understood his position before the election, and he could have sued to enjoin the election beforehand. The appellate majority also reasoned that in these circumstances public policy precluded entertaining a suit which might undermine the validity of the Aurora city government. In other circumstances we might find an action for declaratory judgment moot and a request for an injunction not yet sufficiently ripe for adjudication. (See Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375.) In this case, however, plaintiff’s claim for personal damages requires us to consider the legal merits of his complaint.

Plaintiff’s argument that the referendum was invalid rests upon his interpretation of section 28 — 4 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 28 — 4), which provides in part:

“The governing body of the unit of local government may by resolution and shall, upon the filing with the clerk or secretary of the governmental unit of a petition signed by a number of qualified electors equal to or greater than 10% of the number who voted in the last general election in the governmental unit and who request such a referendum, provide for the submission of the proposal for such action to the voters of the governmental unit at a general, regular or special election, but in no event later than the first general or regular election occurring at least 78 days after the adoption of such resolution or the filing of such petition, as the case may be.”

Plaintiff contends that this section prohibits holding a referendum earlier than 78 days after the resolution to hold one is adopted. We cannot agree. Although the wording of this statute may not be felicitous, its meaning, in our judgment, imposes a maximum, not a minimum. Furthermore, a different construction of that section is not necessary to harmonize it with the other sections of article 28, “Submitting Questions of Public Policy,” of the Election Code. Section 28 — 1 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 28 — 1) requires that any petition to submit a public policy question be filed with the proper election officers not less than 78 days before the date of the election at which the question is to be submitted. This section thus imposes on questions submitted by petition the sort of minimum limitation plaintiff would read into section 28 — 4.

Furthermore, neither section 28 — 1 nor any other section of the article dealing with questions of public policy imposes a similar limitation on questions initiated by ordinance or resolution of a city council. A plausible rationale for treating the two initiation procedures differently is suggested by section 28 — 1.2 (Ill. Rev. Stat. 1975, ch. 46, par. 28 — 1.2), which provides that petitions for the submission of questions of public policy are subject to the same objections, hearings and judicial review as nominating petitions under sections 10 — 8 through 10 — 10.1 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, pars. 10 — 8 through 10 — 10.1). Since this procedure does not apply to initiation of a public policy referendum by the city council, the legislature could reasonably conclude that a longer minimum time period between initiation and submission of the question was necessary to allow objection to the petitions but not necessary when the question was initiated by resolution. Of course, the minimum notice provision of section 12 — 1 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 12 — 1) applies to a question initiated by resolution as well as to one initiated by petition (Ill. Rev. Stat. 1975, ch. 46, par. 28 — 4) and prevents the city council from holding a public policy referendum without affording the electorate a certain minimum amount of time to consider the issue. Finally, the amendments to the Election Code which become effective in December of 1980 show that when the legislature explicitly dealt with the questions of a minimum time period between the initiation of a public question by resolution and the referendum, it did not apply the same period to public questions initiated by resolution and those initiated by petition. (Ill. Rev. Stat. 1979, ch. 46, par. 28 — 2.) We conclude therefore that section 28 — 4 does not impose a minimum time period of 78 days between adoption of the resolution calling for a referendum and the holding of the referendum.

The plaintiff also argues that the city does not have the power to hold nonpartisan elections. Article VII, section 6(f), of the Illinois Constitution of 1970 provides:

“(f) A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law, except that the form of government of Cook County shall be subject to the provisions of Section 3 of this Article. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article.”

We have held that this provision authorizes a home rule municipality to alter the specific forms of government and officers provided in the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, pars. 1 — 1—1 through 11 — 151—5). (Clarke v. Village of Arlington Heights (1974), 57 Ill. 2d 50.) Given the direction of section 6(m) of article VII of the Illinois Constitution of 1970 to construe home rule powers broadly we believe that the power to choose the “manner of selection” should include the ability to decide by referendum whether the election of the officers should be on a partisan or nonpartisan basis.

Plaintiff and amicus, the Illinois State Board of Elections, argue, however, that whether an election shall be conducted on a partisan or nonpartisan basis is exclusively a matter of statewide concern and therefore not within the ambit of municipal powers in the first instance. To support this proposition, they cite section 4 of article III of the Illinois Constitution of 1970, which provides:

“The General Assembly by law shall define permanent residence for voting purposes, insure secrecy of voting and the integrity of the election process, and facilitate registration and voting by all qualified persons. Laws governing voter registration and conduct of elections shall be general and uniform.”

A review of the report of the Committee on Suffrage and Constitution Amending to the sixth constitutional convention reveals that the above provision is concerned with registration and the mechanical procedures for holding elections, not with the partisan or nonpartisan nature of the election, which more closely concerns the manner of selecting officers. (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2343-60; cf. Bridgewater v. Hotz (1972), 51 Ill. 2d 103.) Additionally, the new amendments to the Election Code effective in December 1980 indicate that the General Assembly recognized that under article VII a municipality could choose to hold nonpartisan elections. (See Ill. Rev. Stat. 1979, ch. 46, pars. 10 — 3.1, 2A — 1.2(c)(1), 2A— 1.2(d).) We conclude therefore that a municipality may choose by referendum to conduct its elections on a nonpartisan basis.

Plaintiff further argues that the city did not have the authority to hold its primary election on the first Tuesday in March, as required by the referendum, rather than on the second Tuesday in February, as specified in section 7 — 5 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 7 — 5). We have held that the city had the power to hold nonpartisan elections. Section 7 — 5 concerns partisan, not nonpartisan, elections. Section 4 — 3—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 4 — 3—5) sets a date for nonpartisan primaries for officers of municipalities that have adopted the commission form of government but does not apply to cities under the mayoraldermanic form of government. Plaintiff has not pointed to, and we have not found, any other statute effective in 1977 which might govern primary dates for nonpartisan elections under a mayor-aldermanic form of government. Thus no statute specified a primary date for the city of Aurora during the time relevant to this dispute. (But see Ill. Rev. Stat. 1979, ch. 46, par. 2A — 1.2(d) (effective Dec. 1, 1980).) Under these circumstances we cannot conclude that the city did not have the authority to set a date for its primary. Nor does plaintiff’s related contention that the Aurora election commission unlawfully failed to hold absentee balloting for the 30 days before the date specified for partisan primaries have any merit. Since the city did not hold a partisan primary on that date, it need not have held absentee balloting for the 30 days prior to that date.

Plaintiff also argues that the actions of the defendants in some manner unconstitutionally deprived him of access to the ballot. He does not contend that nonpartisan elections are in themselves unconstitutional. Furthermore we have affirmed both the authority of the city to hold nonpartisan elections and the manner in which the city adopted the nonpartisan plan. Plaintiff’s claim apparently is that the sequence of events involved in this case violates the principles of equal protection and due process. The applicable statutes and ordinances in this case, however, did not impose a greater burden on the plaintiff than on any other potential candidate. Plaintiff’s due process claim is apparently based on the premise that the city could not change from a partisan to nonpartisan election method once the period for making partisan nominations opened. Plaintiff has, however, cited no authority for this proposition. The situation might be different if the change had imposed a kind of legal disability on plaintiff which made it impossible for him or for anyone else similarly situated to run for office; but the plaintiff has not alleged that any actions of the defendants prevented him from running for office as a nonpartisan candidate. We therefore affirm the judgment of the appellate court.

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 52446.
    ETHEL FINLEY, Appellee, v. BILL FINLEY, Appellant.

      Opinion filed May 30, 1980.

    Rehearing denied September 26, 1980.

      David J. Letvin, of Cohn, Carr, Korein, Kunin, Schlichter & Brennan, of East St. Louis, and Richard A. Cary, of Wham & Wham, of Centrada, for appellant.
    David L. Sauer, of Lackey & Lackey, of Centralia, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The primary question presented by this appeal is whether a parent who has been ordered by a divorce decree to pay a collective or lump sum weekly for the support of four minor children may unilaterally reduce the amount of such payments pro rata as each child is emancipated. The resolution of this issue also involves the construction of section 510(c) of the recently enacted Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 510(c)).

On October 4, 1965, a decree was entered in the Marion County circuit court dissolving the marriage of Ethel (plaintiff) and Bill (defendant) Finley. The decree provided, inter alia, that plaintiff be granted custody of their four children: Billy Irvin, age 16; Glenda Darlene, age 12; Terry Lee, age 7; and Patty Jean, age 4. The decree further provided as foHows:

“That the defendant shall pay to the Clerk of this Court who in turn shall pay the plaintiff herein for the use, support and maintainance of said minor children the sum of Thirty ($30.00) Dollars per week, said payments to start on Friday, October 8, 1965, and continue until further order of this Court.”

Defendant complied with the decree during the year 1965, paying $30 each week to the clerk of the court. When his older son, Billy Irvin, entered the Army in 1966, defendant decreased the support payments by one-fourth. He enclosed a note of explanation to the circuit clerk with the reduced payment of $22.50. Approximately 4 years later, the older daughter, Glenda Darlene, was married and defendant again unilaterally reduced the amount of child support to $15. He sent another note to the clerk of the circuit court explaining the second reduction. On October 31, 1975, the younger son, Terry Lee, became 18 and another pro rata reduction of $7.50 was made, although Terry Lee remained at home for a period of time thereafter. A note of explanation of the reduction was forwarded to the circuit clerk with the $7.50 weekly payment for the support of Patty Jean, the parties’ only remaining minor child.

On December 8, 1977, subsequent to the emancipation of three of the four children, plaintiff filed a petition seeking child-support arrearage, interest on the arrearage, and an award of attorney’s fees. Much of the wife’s testimony at the hearing was directed toward negating an anticipated laches defense. She stated that, although she sought the advice of various attorneys several times concerning the unilateral pro rata child-support reductions, she was led to believe that there was nothing she could do regarding the payments. She stated that it was not until November 1976 that she learned that the previous legal advice that she had received was incorrect. She also was called to testify as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). She stated that she had confronted her former husband about the voluntary reductions on only one occasion. That conversation took place approximately 2 years prior to the date of the hearing on the petition for arrearage. The evidence further established that there were only one or two occasions where the support payments, albeit reduced, were tardy. On one of these occasions defendant had been hospitalized for burn injuries.

The trial court ruled that a spouse could not reduce the amount of support to be paid without leave of court. The court specifically found there to be no laches which would bar the claim and that the wife was not equitably estopped since the husband did not change his position in reliance on anything the wife did. Accordingly, on April 20, 1978, the court entered judgment for $10,713.75. The amount represented both the arrearage of child support, which was calculated from the time of the first reduced payments in 1966 until February 23, 1978, the date of the hearing, and $2,120.75 in interest. The wife’s prayer for attorney’s fees was denied. Thereafter the husband filed a petition for reduction of child support. After a hearing the court entered an order that after August 28, 1978, the husband pay $25 per week for the support of the remaining unemancipated child. The husband also appealed from the April 20, 1978, judgment for back child support and interest. On appeal in the appellate court, defendant claimed that the trial court’s order to pay child-support arrearage was improper under section 510(c) of the Illinois Marriage and Dissolution of Marriage Act, which provides in 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.” (Ill. Rev. Stat. 1977, ch. 40, par. 510(c).)

A majority of the appellate court held that section 510(c) applied to the arrearage that accumulated subsequent to October 1, 1977, the effective date of the new act. The court held that the obligation to make support payments for emancipated children automatically abated under the new act and the defendant was not liable for the support payments for the three emancipated children that had accumulated after October 1, 1977. The appellate court reversed the circuit court of Marion County as to that part of the judgment.

As to those payments due prior to the effective date of the Act, the appellate court found the case of Doty v. Doty (1977), 45 Ill. App. 3d 213, to be controlling and affirmed the trial court’s order to pay. The court rejected defendant’s arguments that the wife was equitably es-topped from bringing the suit and that her claim was barred by laches. Finally, the court found that the trial court did not abuse its discretion in awarding interest on the arrearage. The court remanded the cause to the trial court, however, for a recomputation of the interest based on the appellate court’s ruling that the defendant was not liable for support for his emancipated children after October 1, 1977. Also, the court ordered that, pursuant to section 508(a)(3) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 508(a)(3)), the wife was entitled to attorney’s fees incurred in the defense of the appeal. 75 Ill. App. 3d 89.

The question, of unilateral pro rata reduction of support orders has been the subject of considerable litigation in our appellate courts. Although one appellate court has held it to be permissible'to reduce, without court order, a portion of the support payment upon emancipation (Snip v. Snip (1962), 35 Ill. App. 2d 427), the appellate courts of this State have generally held to the contrary (Storm v. Storm (1973), 9 Ill. App. 3d 1071; Voss v. Voss (1974), 23 Ill. App. 3d 312; Venegas v. Venegas (1977), 46 Ill. App. 3d 998, 1001; Baker v. Baker (1977), 53 Ill. App. 3d 186, 191-92; Doty v. Doty (1977), 45 Ill. App. 3d 213; Jozwick v. Jozwick (1979), 72 Ill. App. 3d 17, 20; Westerberg v. Stephens (1979), 76 Ill. App. 3d 119, 122-23). These cases were decided under the law as it was settled prior to the enactment of the Illinois Marriage and Dissolution of Marriage Act and do not, of course, reflect the effect of section 510(c) of that act.

The parties do not contest the validity of section 510(c) of the new act. That section has recently been upheld by this court. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563.) We need only determine whether the provisions of that section permit an obligor-parent to proportionately reduce, without leave of court, the amount of support paid upon the emancipation of a child under a decree for the support of more than one child; that is, did section 510(c) change the law as established by the above decisions of our appellate courts.

During the last term of court, we had occasion to construe certain provisions of the new act. (In re Marriage of Lentz (1980), 79 Ill. 2d 400.) In an attempt to ascertain legislative intent, we looked to applicable provisions of the 1970 Uniform Marriage and Divorce Act for guidance. (See also In re Custody of Harne (1979), 77 Ill. 2d 414.) In the case now before us, we note that section 510(c) of our act is nearly identical to section 316(c) of the uniform act (1970 Uniform Marriage and Divorce Act sec. 316(c)), which provides:

“Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child but not by the death of a parent obligated to support the child.”

It is apparent from a reading of the section that, unless otherwise agreed or provided in the decree, the obligation to support a child terminates upon the emancipation of the child. The section also provides that absent such an agreement or provision, the parent’s obligation to support does not terminate upon the death of that parent. The purpose of the first part of this provision is not to release the parent from the duty to support an emancipated child; such a duty does not ordinarily exist. Rather, the section’s focus is on allowing parents to agree, or the decree to provide, that parents be liable for support subsequent to the emancipation of the child. The commissioner’s note following section 316(c) of the uniform act supports this interpretation:

“Subsection (c) is designed to permit the parties to agree in writing or the court to provide in the decree that the obligation of each parent to support the child will extend beyond the child’s emancipation and to permit parents, on occasion of a legal separation or dissolution of marriage, to agree that the child support provisions of the decree will terminate upon the death of a parent who has provided for the child in his will. In the absence of such an agreement or provision in the decree, this section terminates the obligation of a parent to support a child, only upon the child’s emancipation ***.” Uniform Marriage and Divorce Act sec. 316(c), Commissioner’s Note, at 184-85 (1979).

Prior to the adoption of the new act, our appellate courts have held that a parent’s obligation to support a minor child did not extend beyond the age of minority unless otherwise provided in the decree or as authorized by statute. (See e.g., Premier v. Premier (1977), 55 Ill. App. 3d 244, 246-47. But see Comment, Parent and Child — Divorce Decree May Be Modified to Provide Support Beyond Child’s Minority. (Illinois), 1957 U. Ill. L.F. 668, 671-72.) We agree with the appellate court opinion of In re Marriage of Raski (1978), 64 Ill. App. 3d 629, wherein the court found that the provisions of the new act do not extend the parental obligation for support beyond minority except in limited statutory situations. (See, e.g., Ill. Rev. Stat. 1977, ch. 40, par. 513.) In light of the commissioner’s interpretation of the nearly identical provision of the uniform act (1970 Uniform Marriage and Divorce Act sec. 316(c)), and consonant with the law prior to the adoption of the new act, we find that the legislative purpose behind section 510(c) is to permit the parties to agree to remain liable for the support of the child beyond emancipation. The plain language of section 510(c) states that provisions for child support are terminated by the child’s emancipation, unless otherwise agreed in writing or by court order. Where the intention of the legislature is clearly expressed, the plain meaning of the statute must be given effect. (Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 554.) Thus, it was not the purpose of section 510(c) of the new act to change the law with regard to unilateral pro rata reduction of lump-sum periodic support payments. The statement in that section that the provisions for the support of a child are terminated by emancipation is simply declarative of the common law rule that the obligation to support terminates upon emancipation. Since section 510(c) does not modify the common law, we need not distinguish between the liability for support payments due before and after October 1, 1977, the effective date of the new act; our holding will apply equally to both.

The above analysis of the effect of section 510(c) does not resolve the principal issue in this case; that is, Where the support order specifies one lump-sum amount to be paid periodically as support for more than one child and does not specify the amount of support for each child, can a parent voluntarily assume that such sum is to be divided equally among the children? In addition to our appellate court cases cited above, several other jurisdictions have considered this issue. (See generally Comment, Domestic Relations: Kansas Adopts Automatic Reduction of Child Support, 19 Washburn L.J. 175 (1979); R. Washburn, Post-Majority Support: Oh Dad, Poor Dad, 44 Temp. L.Q. 319, 332-33 (1971); 24 Am. Jur. 2d Divorce and Separation sec. 854 (1966); Annot., 2 A.L.R.3d 596 (1965).) There are a few courts, including our appellate court in the Snip case, which have held that a parent is automatically relieved of paying a portion of such lump-sum-support periodic award where one of the children becomes ineligible for support. (Brady v. Brady (1979), 225 Kan. 485, 592 P.2d 865; Snip v. Snip (1962), 35 Ill. App. 2d 427; Ditmar v. Ditmar (1956), 48 Wash. 2d 373, 293 P.2d 759. See also Codorniz v. Codorniz (1950), 34 Cal. 2d 811, 215 P.2d 32.) The vast majority of courts, however, hold, as did our appellate court in Storm and its progeny cited above, that a single amount to be paid periodically for the support of more than one child is not subject to an automatic pro rata reduction. These courts require that the entire sum be paid until the yougest child attains majority, or until the decree is otherwise prospectively modified by a court order. (See, e.g., Becker v. Becker (1978), 39 Md. App. 630, 387 A.2d 317; Parsley v. Parsley (Mo. App. 1978), 563 S.W.2d 146; Halcomb v. Halcomb (La. 1977), 352 So. 2d 1013; Redman v. Redman (Wyo. 1974), 521 P.2d 584; Rhodes v. Gilpin (D.C. 1970), 264 A.2d 497; Delevett v. Delevett (1968), 156 Conn. 1, 238 A.2d 402; Spivey v. Furtado (1966), 242 Cal. App. 2d 259, 51 Cal. Reptr. 362; Cosgriff v. Cosgriff (N.D. 1964), 126 N.W.2d 131 ; Beaird v. Beaird (Tex. Civ. App. 1964), 380 S.W. 2d 730; Jerry v. Jerry (1962), 235 Ark. 589, 361 S.W.2d 92: Taylor v. Taylor (1961), 147 Colo. 140, 362 P.2d 1027; Cooper v. Matheny (1960), 220 Or. 390, 349 P.2d 812; Schrader v. Schrader (1947), 148 Neb. 162, 26 N.W.2d 617; Estes v. Estes (1941), 192 Ga. 100, 14 S.E.2d 680. See also 2 W. Nelson, Divorce and Annulment sec. 14.91, at 127-28 (2d ed.1961).) The rationale of these cases and of our appellate court decisions as stated below is equally persuasive in determining the effect of our new act upon the right to unilaterally reduce pro rata lump-sum periodic support payments.

Some of the cases reason that a support order is entered upon a consideration of several factors, which include the financial needs of the children and the resources of the noncustodial parent (Ill. Rev. Stat. 1977, ch. 40, pars. 505(1), (5)). Since the ability of the parent to pay is a factor under consideration, the amount awarded may not adequately provide for the needs of the children. Thus, as the number of children to benefit under the award decreases, the original award may more accurately come to reflect the needs of the remaining children. Accord, Gordon v. Ary (Mo. App. 1962), 358 S.W.2d 81, 83; Delevett v. Delevett (1968), 156 Conn. 1, 238 A.2d 402.

Also, as stated in some cases, a further factor to be considered in the award of child support is that of the physical, emotional and educational needs of the individual child (Ill. Rev. Stat. 1977, ch. 40, par. 505(4)). To allow the obligor-parent to equally divide the support among the children would be in dereliction of the legislative guideline set forth for the determination of the proper amount to be paid as child support. (Accord, Cooper v. Matheny (1960), 220 Or. 390, 349 P.2d 812; Becker v. Becker (1978), 39 Md. App. 630, 387 A.2d 317.) Furthermore, the unilateral reduction of child-support payments constitutes a modification of the support order. The modification of such payments is solely a judicial function which is to be administered only by the court and in its discretion. (See Jozwick v. Jozwick (1979), 72 Ill. App. 3d 17, 20.) It is the function of the court to determine whether there should be a pro rata reduction in lump-sum periodic support payments when one of several children is emancipated, or whether other equitable considerations require that the reduction be a lower amount, or in fact whether there should be any reduction in the payments. Automatic reduction in support payments in a case such as the one before us constitutes an infringement upon the discretionary powers of the court to modify an award. (See Jerry v. Jerry (1962), 235 Ark. 589, 361 S.W.2d 92.) The responsible parent should petition the court for a judicial determination of the amount the support payments should be reduced due to changed circumstances. (See Ill. Rev. Stat. 1977, ch. 40, par. 510(a).) In view of the foregoing, we hold that the unilateral pro rata reduction of lump-sum periodic support payments for the benefit of more than one child upon the emancipation of a child is impermissible under the new act, as well as under the common law.

The defendant argues that the application of certain equitable principles would bar his wife from obtaining a judgment for unpaid amounts. He initially claims that her failure to institute the action earlier constitutes laches. (See generally Annot., 70 A.L.R.2d 1250 (I960).) Laches will operate to bar equitable relief where the failure to assert a right, along with a lapse of time and other circumstances, causes prejudice to the adverse party. [Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552; Gill v. Gill (1973), 56 Ill. 2d 139, 144-45.) The trial court in this case specifically found that the evidence did not establish the necessary elements of laches so as to bar the recovery of the amount owed on the support order. The appellate court, in affirming that conclusion, following Doty v. Doty (1977), 45 Ill. App. 3d 213, Baldwin v. Baldwin (1974), 21 Ill. App. 3d 380, and Atwater v. Atwater (1974), 18 Ill. App. 3d 202, held that a spouse is not injured because he is forced to pay the accumulated support in one lump sum as opposed to weekly payments as ordered. We agree with the holdings in these cases and find that the defendant has failed to establish a necessary element of laches, that he has been injured by the delay. (See also Jozwick v. Jozwick (1979), 72 Ill. App. 3d 17, 22. Contra, Wolfe v. Wolfe (1940), 303 Ill. App. 188.) Laches is an equitable dotitrine to be invoked or rejected in the trial court’s discretion. (See Beckham v. Tate (1978), 61 Ill. App. 3d 765, 768.) Having found no abuse of this discretion by the trial court we reject defendant’s argument concerning the laches defense.

Defendant also asserts that his wife should be equitably estopped from pursuing this claim. This court set forth the definition of equitable estoppel in Dill v. Widman (1952), 413 Ill. 448. It is clear from that case that an essential element of estoppel is reliance. The trial court in our case correctly determined that defendant’s failure to pay the full amount was not due to any act or omission by his wife; rather, he did not comply with the provisions of the support decree because he believed that he was no longer liable for the amount specified in the decree and could therefore unilaterally reduce the payment. Inasmuch as he failed to establish that he relied on the acts or omissions of his wife, she is not equitably estopped from bringing this suit.

We likewise reject defendant’s assertion that a new agreement for support was entered into between the parties. There was no evidence adduced at trial of an express agreement to reduce the support payments as each child was emancipated. Nor are we willing to infer the existence of an implied agreement. Such a finding was within the discretion of the trial court, which failed to find the existence of an implied agreement. We will not invade the province of the trial court on review unless there exists a clear abuse of discretion. Since the defendant failed to establish equitable defenses sufficient to bar this action, we affirm the trial court’s determination of arrearage due.

Defendant also contends that the allowance of interest on a judgment is within the sound discretion of the court. Plaintiff argues that the periodic payments ordered by the court are money decrees and that, under the provision of section 3 of the interest statute (Ill. Rev. Stat. 1977, ch. 74, par. 3), interest is payable on each installment after its due date. It is plaintiff’s contention that, under the statute, interest is not discretionary. Each party’s position is supported by a line of appellate court authority. Those cases wherein the allowance of interest was held to be within the sound discretion of the divorce court include Sutton v. Leib (7th Cir. 1952), 199 F.2d 163 (applying Illinois law), Matzen v. Matzen (1979), 69 Ill. App. 3d 69, In re Estate of Neirinck (1978), 62 Ill. App. 3d 189, Atwater v. Atwater (1974), 18 Ill. App. 3d 202, and Anderson v. Anderson (1964), 48 Ill. App. 2d 140. Other decisions hold that a divorce decree is a money decree which draws interest until satisfied. Ellingwood v. Ellingwood (1975), 25 Ill. App. 3d 587; Neeland v. Neeland (1974), 17 Ill. App. 3d 803; Gregory v. Gregory (1964), 52 Ill. App. 2d 262; Shuffv. Fulte (1951), 344 Ill. App. 157; Wadler v. Wadler (1945), 325 Ill. App. 83.

Plaintiff relies principally on the case of Ellingwood v. Ellingwood (1975), 25 Ill. App. 3d 587. In that case, the appellate court construed the case of Pope v. Pope (1954), 2 Ill. 2d 152, as standing for the proposition that the equity court lacks authority to determine whether an award of interest is appropriate and, instead, is bound to assess interest against each individual payment as it becomes due. We do not agree. In Pope, the trial court refused to allow interest on the accrued alimony payments due under the divorce decree since it did not order immediate payment of a lump sum. In reversing the trial court, this court held that “interest at the legal rate could be recovered on the payments from the date they fell due.” (Emphasis added.) (Pope v. Pope (1954), 2 Ill. 2d 152, 160.) Therefore, in Pope we merely held that interest could be assessed against periodic payments; it was not necessary that there be a judgment for a single sum for the assessment of interest.

This court has held that a divorce proceeding partakes so much of the nature of a chancery proceeding that it must be governed to a great extent by the rules that are applicable thereto. (Bremer v. Bremer (1954), 4 Ill. 2d 190, 192.) In a chancery proceeding, the allowance of interest lies within the sound discretion of the trial judge and is allowed where warranted by equitable considerations and is disallowed if such an award would not comport with justice and equity. (Galler v. Galler (1975), 61 Ill. 2d 464, 474; Groome v. Freyn Engineering Co. (1940), 374 Ill. 113, 131; Duncan v. Dazey (1925), 318 Ill. 500, 527;McKey v. McCoid (1921), 298 Ill. 566, 572.) As stated in Groome, “In a proper case, equitable considerations permit a court of equity to allow or disaUow interest as the equities of the case may demand.” (374 Ill. 113, 131.) We therefore conclude that the allowance of interest on past-due periodic support payments is not mandatory as contended by the plaintiff, but lies within the sound discretion of the trial judge, whose determination will not be set aside absent an abuse of that discretion.

After an examination of the record in this case we cannot say that the allowance of interest by the trial judge constituted an abuse of discretion. For well over 10 years, plaintiff was deprived of money for child support which was rightfully hers. For this same length of time, defendant enjoyed the use of the money. For this reason alone, the trial court could have determined that an award of interest was appropriate. Since we have determined that defendant is liable for all payments of support as well as for interest calculated thereon, it will be necessary to remand the cause to the trial court for a recomputation of interest. The calculation must be based on support payments due from the date of the first reduction to August 28, 1978, the date the payments were changed by court order.

We now turn to the final issue on appeal: whether the appellate court erroneously awarded legal fees incurred by plaintiff in the defense of this appeal. This question is governed by the new act. Section 508 provides:

“(a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in connection with the following:
***
(3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.” (Ill. Rev. Stat. 1977, ch. 40, par. 508(a)(3).)

The trial court had denied plaintiffs request for attorney’s fees at the trial court level. After the defendant filed his notice of appeal the plaintiff filed a petition in the trial court for the allowance of attorney’s fees to defend the appeal. The record does not show that the trial court ruled on this petition. The plaintiff filed another petition for attorney’s fees to defend the appeal in the appellate court and the defendant filed objections thereto. The appellate court took the petition and objections with the case and in the opinion granted the petition and ordered the payment of reasonable fees which directly pertain to the defense of the appeal. Although there is nothing in the record to show the information on which the appellate court made its decision to allow fees, the plaintiff’s brief indicates that this decision was based upon the petition of the plaintiff, the objections of the defendant, and the record that had been made in the trial court. The plaintiff contends that this procedure satisfied the notice and hearing requirement of section 508(a). It should be remembered that following the hearing and after considering the financial resources of the parties as required by section 508(a), the trial court had denied the plaintiff’s petition for attorney’s fees at the trial level. Since this was a factual determination made by the trial court following an evidentiary hearing it would appear that the same evidence which was insufficient to support the allowance of attorney’s fees at the trial level would not be sufficient to support an award of attorney’s fees for the defense of the appeal. We, therefore, conclude that the appellate court’s order that the defendant pay plaintiff’s attorney’s fees for the defense of the appeal was not appropriate.

In summation, we have held that a parent may not reduce, pro rata, the amount of support upon the emancipation of a child under a decree for the support of more than one child. We have rejected defendant’s equitable defenses, upheld the interest award as ordered by the trial court, and reversed the attorney’s fees award as ordered by the appellate court. We affirm the decision of the circuit court except as to the amount of the money judgment entered. We vacate the money judgment and remand the cause to the circuit court of Marion County to compute the amount of arrearage child support under the original decree to the date of August 28, 1978, the date said decree was modified. After August 28, 1978, the arrearage will be computed on the basis of the modified order from the date of said order to the date of said judgment, unless later modifications have been made. Interest is to be computed on the total amount to the date the judgment of the circuit court shall be entered.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and vacated in part; cause remanded, with directions.