author: MR. JUSTICE RYAN

text:
    (No. 53119.
    WILLIAM REDMOND, Appellant, v. JOHN L. NOVAK, County Treasurer, et al., Appellees.

      Opinion filed September 30, 1981.

      Lee J. Schwartz, of Chicago, for appellants.
    J. Michael Fitzsimmons, State’s Attorney, and Thomas C. Kelleghan, both of Wheaton (Robert L. Thompson, Roy F. Lawrence, and Barbara A. Preiner, Assistant State’s Attorneys, and James Salsbury, law student, of counsel), for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, William A. Redmond, as a taxpayer, individually and on behalf of all other taxpayers similarly situated, brought an action in the circuit court of Du Page County to enjoin the treasurer of DuPage County, the County of Du Page, and the Du Page County board of election commissioners (board), from performing an agreement whereby the county had rented space to the board for a fixed amount of rent. The complaint also sought a declaration that the lease was void and also requested that all sums previously paid as rent by the board to Du Page County, approximately $700,000, be repaid to the board. The plaintiff’s request for a preliminary injunction was denied, and a notice of appeal was filed with respect to that order. Shortly thereafter, the trial court also denied plaintiff’s prayer for other relief and dismissed the complaint. We granted the plaintiff’s motion to transfer the appeals directly to this court, pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)), and consolidated both matters for review in this court.

In 1973, the Dlinois General Assembly amended the Election Code to provide a method by which county boards of election commissioners could be created in counties where no city, village, or incorporated town had previously established a municipal board of election commissioners. (Ill. Rev. Stat. 1979, ch. 46, par. 6A — 1 etseq.) In 1974, Du Page County established the Du Page County board of election commissioners. Since its creation, the board has maintained its offices in a building owned by the county and has paid rent to the county for that space.

In this appeal, the plaintiff, as a taxpayer, challenges this arrangement on constitutional grounds of due process and equal protection (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2), as well as a claim that article 6A of the Election Code constitutes special legislation prohibited by the Illinois Constitution (Ill. Const. 1970, art. IV, § 13). The plaintiff also contends that since counties which have established a county board of election commissioners are empowered to levy a tax “for the expense of conducting elections” (Ill. Rev. Stat. 1979, ch. 34, par. 408), the payment of rent out of these funds amounts to a “skim-off” of taxes being collected, in violation of article VII, section 9, of the Illinois Constitution. The thrust of plaintiff’s argument is that a county board of election commissioners is simply an extension of the office of county clerk, inasmuch as the clerk’s office had handled the election function in Du Page County prior to the creation of the board. Since the county is required to provide rent-free space to the clerk (Ill. Rev. Stat. 1979, ch. 34, par. 432), plaintiff argues it is unlawful to charge rent to the board for performing the same service. It is also argued that the lease was not bargained for at arm’s length and that the rent charged is substantially above the benefit conferred, so that the lease should not, in equity, be enforced.

We note first that the allegations concerning constitutional violations are general in nature and for the most part do not specify in what manner the constitutional provisions were infringed. Constitutional issues cannot be raised by such general allegations. (People v. Palkes (1972), 52 Ill. 2d 472, 474; In re Simaner (1959), 15 Ill. 2d 568, 576; Biggs v. Cummins (1955), 5 Ill. 2d 512, 516.) We need not, therefore, consider the general allegations of the complaint which charge that to the extent the statute authorizes the contract between the county and the board, it is special legislation prohibited by the provisions of section 13 of article IV of the 1970 Illinois Constitution.

Almost as general and vague are the allegations that the county charges no rent to other agencies of government and that “therefore the contract is a violation of the equal protection guarantees” of the State and Federal constitutions. We presume plaintiff’s contention is that if the statute authorizes the county to charge the board rent, it violates the equal protection clauses, since counties which have not established county boards of election commissioners must provide space rent free to the county clerk, who must perform the same functions. It has long been recognized that the regulation of elections is within the power of the General Assembly. (People ex rel. Schnackenberg v. Czarnecki (1912), 256 Ill. 320.) Our constitution of 1970 has continued in the legislature its historic role with regard to elections. (Ill. Const. 1970, art. Ill, §§1, 4, 5.) In addition to the recognized preeminence of the legislature in election matters, classification for purposes of legislation is likewise primarily a legislative function. Classifications for legislative purposes are presumptively valid, and the one attacking the validity of such classifications has the burden of proving that the same are unreasonable or arbitrary. (People v. Palkes (1972), 52 Ill. 2d 472, 476-77; People ex rel. Stamos v. Public Building Com. (1968), 40 Ill. 2d 164, 179-80.) There is a presumption that the General Assembly and its committees acted conscientiously and did their duty in enacting the classification legislation, and this court will not nullify the result on the ground that its judgment might differ from that of the General Assembly. Only if it can be said that the classification is clearly unreasonable and palpably arbitrary will the court hold the classification invalid. (Du Bois v. Gibbons (1954), 2 Ill. 2d 392, 398-99; Supervisors of the County of Boone v. Village of Rainbow Gardens (1958), 14 Ill. 2d 504, 512-13.) The plaintiff has not shown in what manner the statute is unreasonable or arbitrary in authorizing the county to charge rent to the board of election commissioners. Boards of election commissioners have been authorized in certain cities since an early date. (Legislation was originally enacted authorizing creation of municipal boards of election commissioners in 1885. See Ill. Ann. Stat., ch. 46, par. 6 — 1 et seq., Historical Note (Smith-Hurd 1965).) In 1973 the legislature authorized boards of election commissioners to be established in certain counties. Plaintiff has not shown us in what manner renting office space to the board to perform the functions specified by the statute would be a denial of equal protection. The fact that the statute requires the county to furnish office space to certain county officers, but not to the board does not alone violate equal protection. There may be valid reasons for permitting the board to enjoy the flexibility of choosing its own office space and not requiring it to accept that which the county is willing to furnish. It may also be that the legislature could foresee the possibility that adequate and suitable space would not be available in county-owned property. Whatever the reason, as noted later in this opinion, the legislature authorized the board to choose its own space and pay rent for it. This is a legislative judgment which we must find presumptively valid, and the plaintiff has not come forth with any convincing argument to overcome this presumption of validity.

There is also no support for the conclusional allegation that tax monies have been “diverted” to the county in violation of article VII, section 9, of the Illinois Constitution. The cases cited by the plaintiff in support of this argument are inapposite. Plaintiff relies on City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, and Flynn v. Kucharski (1970), 45 Ill. 2d 211. The gist of the holding in those cases is that one taxing body cannot “skim-off” taxes levied by another and divert that money to a use other than that for which it was levied. This is not the case here. When the tax is levied for the board of election commissioners and is paid to the county for rent, it is being spent for a purpose authorized by statute: to finance the cost of elections by providing office space for the board. (Ill. Rev. Stat. 1979, ch. 34, par. 408.) Also, such an expenditure is not a violation of article VII, section 9(a), of the Illinois Constitution because the expenditure of tax money for office space is not a payment of office expense from fees collected, nor does it constitute the payment of a fee based upon funds disbursed or collected, or upon the levying or extension of taxes.

This case is simply one of statutory construction with the issues being:(l)whether DuPage County has been granted the power to lease its property, and (2) whether, in authorizing the creation of county boards of election commissioners, the legislature has authorized such board to contract and pay rent for office space. The plaintiff has urged that if the statutes grant such authority, the constitutional violations argued occurred. In deciding these constitutional questions, we have assumed that such authority was granted to the board of election commissioners and to the county. We must now decide whether such authority has, in fact, been granted by the legislature.

The first issue presented is resolved by express statutory language. “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1979, ch. 34, par. 1 et seq.) specifically provides that each county shall have the power “[t]o sell and convey or lease any real or personal estate owned by the county.” (Ill. Rev. Stat. 1979, ch. 34, par. 303.) There is no stated limitation on this power expressly granted by the statute, and nothing therein suggests that property owned by the county cannot be leased to another unit or agency of government. (A board of election commissioners, although an agency of government, is statutorily declared not to be a unit of local government within the meaning of article VII, section 8, of the Constitution of 1970 (Ill. Rev. Stat. 1979, ch. 46, par. 6 — 21).) A limitation on the power to lease is found in the constitutional provision that public funds, property and credit may only be used for public purposes. (Ill. Const. 1970, art. VIII, § 1(a).) Since the lease in this case is obviously for a “public purpose,” there is no question but that the County of Du Page is authorized by the Constitution and statute to rent space to the board.

We also find that the county has not abused this power by charging an excessive rate of rent to the board. The record contains a resolution of the county board (Resolution CR — 005—79) which establishes a uniform rate of rent per square foot to be charged for county office space. The record also discloses that, in addition to the board of election commissioners, the county has leased space to a congressman, the Regional Transportation Authority, the DuPage County Criminal Justice Coordinating Council, the V.I.P. Council of Illinois, the Community Development Commission, the Emergency Service and Disaster Commission, the Department of Veterans Affairs, the Comprehensive Employment and Training Agency, and the Du Page County Senior Citizens Council. The rental charged to the board of election commissioners is not excessive, as plaintiff alleges, but conforms to the rental charges made to the other lessees.

We also reject the plaintiff’s assertion that the county is required to provide space free of charge to the board. Counties, like municipalities (other than home rule units), can exercise only those powers expressly granted to them by the legislature or those which arise therefrom by necessary implication. Ill. Const. 1970, art. VII, §7; Appeal Board v. United States Steel Corp. (1971), 48 Ill. 2d 575, 577; Chicago School Transit, Inc. v. City of Chicago (1966), 35 Ill. 2d 82,83-84; Heidenreich v. Ronske (1962), 26 Ill. 2d 360, 362.) A corollary to this rule is that counties are likewise under no duty to perform acts not specifically authorized by statute or necessarily arising by implication from a statute. Accordingly, it should be noted that counties are required to provide space for several county officers, departments and functions of State government. (See, e.g., Ill. Rev. Stat. 1979, ch. 34, pars. 432,432.1.) However, there is in the statute no provision which requires that space be provided for county boards of election commissioners. The mere fact that these boards assume a function previously performed by an office which was provided with space at county expense does not extend the duty to provide space to them by necessary implication. County boards of election commissioners are not extensions of the county clerk’s office, but are independent bodies, created by statute, and possessing only that authority granted to them by the legislature.

As previously noted, county boards of election commissioners were authorized by the 1973 amendment of the Election Code. That county boards of election commissioners are to be considered of the same nature as and treated similarly to municipal boards of election commissioners is made clear by section 6A — 5 of the Election Code, which states:

“The provisions of Articles 6,14 and 18 of this Act [the Election Code] relating to boards of election commissioners in cities, villages and incorporated towns shall, insofar as they can be made applicable, apply to and govern county boards of election commissioners established pursuant to this Article 00°.” (Ill. Rev. Stat. 1979, ch. 46, par. 6A — 5.)

Article 6 of the Code, which governs municipal boards of election commissioners, is quite detailed, containing some 77 unrepealed sections. However, article 6A, which governs county boards of election commissioners, contains only seven unrepealed sections, which do not describe the duties and authority of county boards in any detail. Section 6A — 5 incorporates by reference the provisions of article 6 and consequently relies on that article to set out the powers and duties of county boards.

Although article 6A does not specifically authorize a county election board to contract for office space, section 6A — 4 clearly contemplates that the office of the board will be its own office and not an adjunct of the county clerk’s office, by directing that, “[u]pon the opening of the office of the county board of election commissioners, the county clerk shall turn over to such board all registry books ***.” (Ill. Rev. Stat. 1979, ch. 46, par. 6A — 4.) Further, section 6 — 24, which governs municipal boards of election commissioners and by virtue of section 6A — 5 also governs county boards of election commissioners, directs that once appointed and sworn, “[s]uch board of commissioners shall at once secure and open an office.” (Ill. Rev. Stat. 1979, ch. 46, par. 6 — 24.) This language is consistent with the quoted portion of section 6A — 4 and establishes beyond question that county boards of election commissioners are authorized, and in fact are directed, to secure office space and open an office. Because no other provision in our statutes directs or authorizes any agency or unit of government to provide such office space, the power of a county board of election commissioners to pay for office space is necessarily implied from the direction to “at once secure” an office.

Since the parties had stipulated in the trial court that no further proof or argument would be presented after the request for a preliminary injunction was denied, we need not remand this cause for further proceedings on this issue. The judgments of the circuit court of Du Page County are affirmed.

Judgments affirmed.


source: Caselaw Access Project

author: MR. JUSTICE SIMON

license: Public Domain

text:
    (No. 53514.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HARLAN D. SEARLE, Appellee.

      Opinion filed September 30, 1981.

    Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for appellant.
    William H. Herring, of Peoria, for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

The State Police stopped Harlan Searle, a motorcyclist, for a traffic violation, found that the engine of his motorcycle did not bear a legible manufacturer’s identification number as required by law, and seized the motorcycle. Searle attempted, through the Secretary of State’s office, to have the proper number affixed to the motorcycle, which had been rebuilt out of several used parts, including a used engine, so that he might have it back. The police responded that they were holding it as evidence for a criminal complaint against Searle. Eventually, he was tried and found guilty of the misdemeanor of unknowingly possessing a vehicle without a required identification number. However, the court then realized that the case had been brought in the wrong county, the one in which the State Police headquarters was located rather than the county in which he was stopped, and the complaint was dismissed. The State’s Attorney in the proper county refused to proceed against Searle. Next came an application by the State to the circuit court of Woodford County under section 4 — 107(i) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 107(i)) for an order to sell the motorcycle. Had the proper number for the engine been impossible to determine, the motorcycle would have been subject to forfeiture; but Searle, by going back through the chain of title, proved what the number should be. Accordingly, the circuit court of Woodford County ordered the police to stamp the number on the cycle and return it to Searle.

The State, however, asserted that under section 4 — 207 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 207) Searle could not get the vehicle back without first paying the storage charges for the time the police had held it. The police had stored it in a commercial garage at high daily rates, and as the two trials, despite Searle’s demand for speedy disposition, had produced a long delay, the storage charges amount to several thousand dollars, probably more than the value of the motorcycle. The circuit court of Woodford County held section 4 — 207 unconstitutional as a deprivation of due process, and ordered the vehicle returned to Searle without charge. The State appeals directly to this court under Supreme Court Rule 302(a)(1) (73 Ill. 2d R. 302(a)(1)).

The State’s claim to storage charges rests on section 4 — 207 of the Illinois Vehicle Code, which provides:

“Reclaimed vehicles — Expenses. Any time before a vehicle is sold at public sale or disposed of as provided in Section 4 — 208, the owner or other person legally entitled to its possession may reclaim the vehicle by presenting to the law enforcement agency having custody of the vehicle proof of ownership or proof of the right to possession of the vehicle. No vehicle shall be released to the owner or other person under this Section until all towing and storage charges have been paid.” (Ill. Rev. Stat. 1977, ch. 9Sá, par. 4 — 207.)

As we interpret the Code, section 4 — 207 does not apply to the present case. There is therefore no need to consider whether it is constitutional.

All the statutory provisions involved in this case are found in chapter 4 of the Vehicle Code. That chapter is divided into three articles. Article III is about the Vehicle Recycling Board, and is irrelevant to this dispute. Section 4 — 207, the one dealing with payment of storage charges, is part of article II, entitled “Abandoned, Lost, Stolen, or Unclaimed Vehicles.” Article II prescribes, in more or less chronological order, a coherent scheme for handling such vehicles, that is to say, vehicles that have somehow gotten separated from their owners. Vehicles are not to be abandoned (Ill. Rev. Stat. 1977, ch. 95/2, par. 4 — 201). Stray vehicles are to be towed into custody (Ill. Rev. Stat. 1977, ch. 95*2, pars. 4 — 202, 4 — 203), and a report made (Ill. Rev. Stat. 1977, ch. 95/2, par. 4 — 204). Various officials try to discover and notify the owner. (Ill. Rev. Stat. 1977, ch. 95/2, pars. 4 — 205, 4 — 206.) The vehicle may be reclaimed upon proof of ownership (or other right to possession), but towing and storage charges must first be paid (Ill. Rev. Stat. 1977, ch. 95*2, par. 4 — 207, the provision at issue). If nobody claims the vehicle, it is sold. (Ill. Rev. Stat. 1977, ch. 95)2, pars. 4 — 208, 4 — 209.) In either case, another report is made. (Ill. Rev. Stat. 1977, ch. 95)1, par. 4 — 210.) The proceeds of the sale are disposed of (Ill. Rev. Stat. 1977, ch. 9512, par. 4 — 211), and the buyer gets a certificate of title (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 212).

Searle’s motorcycle was not an abandoned, lost, stolen, or unclaimed vehicle. All the legal proceedings in this case have arisen not under article II but under article I, entitled “Anti-Theft Laws.” Article I, prescribes, inter alia, a program of identification numbers. The manufacturer must affix such numbers. (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 107(g).) If a vehicle is discovered without required numbers, it is seized and held for identification. (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 107(i).) The State Police reaffix the number, if possible. (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 107(h).) If the proper number cannot be ascertained, the vehicle is considered contraband, and sold. (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 107(i).) In any event, possession of a vehicle without a number is an offense, a felony if knowing (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 103(d)), a misdemeanor if unknowing (Ill. Rev. Stat. 1977, ch. 95b, par. 4 — 102(d)).

Nothing in the organization or language of the Code suggests that the last sentence of section 4 — 207, an integral part of article II, has any application in a proceeding under article I. On the contrary, section 4 — 207 as a whole obviously does not apply to this case: Searle was not able, as contemplated by section 4 — 207, to reclaim his property “[a]ny time 5,00 by presenting 000 proof of ownership 00°.” And section 4 — 207 itself limits its demand for payment of towing and storage charges to vehicles released to the owner “under this Section,” thereby implying that vehicles may be released under other parts of the Code without payment of such charges. Moreover, section 4 — 107(i), in dealing with the sale of a vehicle for which the proper number cannot be ascertained, provides expressly that the proceeds of the sale are to be disposed of in accordance with section 4 — 211, a part of article II (under which towing, storage, and processing charges are paid off the top, and the balance goes to the municipality or county). If the procedures of article II were intended to spill over generally to article I, that express incorporation by reference would have been unnecessary.

Requiring Searle to pay storage charges before he can get his motorcycle back upsets the plan of article I. The legislature has established a penalty for possessing a vehicle without a number. The maximum fine is set at $1,000 — assuming the defendant is convicted. But under the State’s view of the law, that is an illusion; the $1,000 is only the beginning; in addition to the official criminal fine, the owner must pay storage charges amounting, probably, to more than the fine, and this even if the criminal case ends in his favor, as here. The legislature has provided that a vehicle is to be forfeited only if its number cannot be ascertained. But under the State’s view, the vehicle is effectively forfeited, in that the accrued charges exceed its value, whenever the legal proceedings take a long time. The statute (Ill. Rev. Stat. 1977, ch. 95/2, par. 4 — 107(i)) provides that the State’s Attorney is to ask the court for an order to sell the vehicle only after the criminal case, in which the vehicle is evidence, is finished. The delays, therefore, are caused not only by the necessities of the identification process but by the criminal process. In the State’s view, the defendant is in effect to pay for storage of the evidence against him — even if he is acquitted. This is neither a reasonable interpretation of the statute nor a sensible result.

Section 4 — 207’s provision for payment of charges may make sense in its proper context, namely the reclaiming of a mislaid vehicle after a short delay and correspondingly modest charge. In the present context of a long adversary proceeding, it makes no sense. It is not in article I; it does not belong in article I; and we will not read it into article I.

The motorcycle must be returned to its owner without charge, as the circuit court ordered, though for different reasons.

The judgment of the circuit court of Woodford County is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 54131.
    THE ENVIRONMENTAL PROTECTION AGENCY, Appellee, v. THE POLLUTION CONTROL BOARD et al. (United States Steel Corporation, Appellant).

      Opinion filed September 30, 1981.

      Clifton A. Lake and Johnnine Brown Hazard, of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Thomas R. Chiola and Judith S. Goodie, Assistant Attorneys General, of Chicago, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

U.S. Steel Corporation (the company) applied to the Illinois Environmental Protection Agency (the Agency) for operating permits for four blast furnaces located at its “South Works” in Chicago. The company sought review (Ill. Rev. Stat. 1977, ch. 111M, par. 1040) by the Pollution Control Board of the Agency’s denial, and the Board ordered the Agency to grant the permits. The Agency appealed to the appellate court (73 Ill. 2d R. 335), which reversed the Board (88 Ill. App. 3d 71), and we granted the company’s petition for leave to appeal.

This case involves the Board’s construction of Rule 203 of its rules and regulations (Illinois Pollution Control Board Rules and Regulations, Chapter 2: Air Pollution (1970) (the Rules)), which states, in part:

“Rule 203: Particulate Emission Standards and Limitations.
(a) Particulate Emission Standards and Limitations for New Process Emission Sources.
Except as further provided in this Rule 203, no person shall cause or allow the emission of particulate matter into the atmosphere in any one hour period from any new process emission source which, either alone or in combination with the emission of particulate matter from all other similar new process emission sources at a plant or premises, exceeds the allowable emission rates specified in Table 2.1 and in Figure 2.1.
« « «
(b) Particulate Emission Standards and Limitations for Existing Process Emission Sources.
Except as further provided in this Rule 203, no person shall cause or allow the emission of particulate matter into the atmosphere in any one hour period from any existing process emission source which, either alone or in combination with the emission of particulate matter from all other similar new or existing process emission sources at a plant or premises, exceeds the allowable emission rates specified in Table 2.2 and in Figure 2.2.
» e
(d) Exceptions to Rules 203(a), 203(b) and 203(c).
[The exceptions here specified involve a number of particularly described operations to which different standards or different sections are to be applied. Blast furnaces and casting operations are not included.]
# « «
(f) Fugitive Particulate Matter.
(1) No person shall cause or allow the emission of fugitive particulate matter from any process, including any material handling or storage activity, that is visible by an observer looking generally toward the zenith at a point beyond the property line of the emission source.
(2) No person shall cause or allow the emission of fugitive particulate matter from any process, including any material handling or storage activity, in such a manner that the presence of such particulate matter shown to be larger than forty (40) microns (mean diameter) in size exists beyond the property line of the emission source.”

Rule 201 contains the following definitions:

“Fugitive Particulate Matter: Any particulate matter emitted into the atmosphere other than through a stack, provided that nothing in this definition or in Rule 203(f) shall exempt any source from compliance with other provisions of Rule 203 otherwise applicable merely because of the absence of a stack.
Process: Any stationary emission source other than a fuel combustion emission source or an incinerator.
Stationary Emission Source: An emission source which is not self-propelled.”

Also relevant to our consideration is section 39 of the Environmental Protection Act (the Act), which provides:

“(a) When the Board has by regulation required a permit for the oaa operation of any type of facility °°°, the applicant shall apply to the Agency for such permit and it shall be the duty of the Agency to issue such a permit upon proof by the applicant that the facility 500 will not cause a violation of this Act or of regulations hereunder. If the Agency denies any permit under this Section, the Agency shall transmit to the applicant within the time limitations of this Section specific, detailed statements as to the reasons the permit application was denied. Such statements shall include, but not be limited to the following:
(i) the sections of this Act which may be violated if the permit were granted;
(ii) the provision of the regulations, promulgated under this Act, which may be violated if the permit were granted;
(iii) the specific type of information, if any, which the Agency deems the applicant did not provide the Agency, and;
(iv) a statement of specific reasons why the Act and the regulations might not be met if the permit were granted.
If there is no final action by the Agency within 90 days after the filing of the application for permit, the applicant may deem the permit issued.” Ill. Rev. Stat. 1977, ch. 111M, par. 1039.

The Agency’s denial of the permits was by letter, stating:

“As required by Section 39 of the Illinois Environmental Protection Act, specific reasons why the Rules and Regulations might not be met follow:
The #8, #10, #11, and #12 blast furnaces emit particulate matter, by our analyses, in excess of that amount allowed by Rule 203(a). Therefore no permit may be granted.”

The letter stated no other reason for the denial. The company, in a letter to the Agency, protested that decision, stating:

“In response to your denial of an operating permit for the subject facilities, we take exception to the interpretation of the regulations regarding fugitive emissions.
* # #
To our knowledge no basic iron blast furnace cast house in the United States is vented through a stack. It is therefore clear that cast emissions are fugitive emissions and should not be included in determining compliance with process weight limitation.”

The Agency replied by letter, again denying the permit for reasons identical to the original denial.

The company petitioned the Board, pursuant to section 40 of the Act, claiming that the Agency had improperly applied Rule 203(a) to emissions governed by, and in compliance with, Rule 203(f). Section 40 states in part:

“If the Agency refuses to grant a permit under Section 39 of this Act, the applicant may petition for a hearing before the Board to contest the decision of the Agency. 000 The Agency shall appear as respondent in such hearing. At such hearing the rules prescribed in Sections 32 and 33(a) of this Act shall apply, and the burden of proof shall be on the petitioner.” Ill. Rev. Stat. 1977, ch. 111M, par. 1040.

Before the Board, the company and Agency stipulated to a description of the casting-house operation which in-eluded:

“During the casting operation, particulate matter is unavoidably released upon contact between the molten iron and the air. Such particulate matter is not controlled by Petitioner, nor are particulate controls for molten iron casting operations in connection with basic iron blast furnace operations employed by any other operator within the State of Illinois.”

The stipulation also outlined the origin of the dispute between the Agency and the company:

“Although cast house emissions have always existed, the Agency had no knowledge until 1977 of what those cast house emissions were. 000 In 1977 the U.S. Environmental Protection Agency found in its report covering cast house emissions, which the Illinois Agency took notice of in this case, that cast houses have an emission factor of .3 pounds per ton of metal tapped. Beginning in 1977 the Illinois Environmental Protection Agency has taken cast house emissions into consideration in each basic iron blast furnace and will require controls on the particulate emissions generated during casting when such cast house emissions result in a violation of Rule 203 of Chapter II of the Illinois Pollution Control Board Rules and Regulations: Air Pollution.”

Although the company had before the Board disputed the manner of calculation of one hour’s emissions, it is apparently now conceded that emissions from each of the four furnaces would, during an hour of tapping, exceed emissions permissible under Rules 203(a) and (b), if those rules apply and if estimated casting-house emissions are included. The controversy between the company and Agency resolves itself into whether casting-house emissions must be included, at Agency-estimated levels, in calculations under Rules 203(a) and (b) as well as being subject to the limitations of Rule 203(f), compliance with which the Agency did not deny in ruling on the permit. The Board’s decision ordering the Agency to issue the permits stated:

“On August 7, 1978 the parties herein filed a Stipulation of Fact before the Board. Review of the Stipulation shows that there is no issue of fact in this case but rather a question of interpretation of the Board’s regulations. The facilities in question are four blast furnaces used by USS for the purpose of producing molten iron to be used in the company’s steel making process. The emissions in question are produced only during the tapping of molten iron into ladle cars which transport the iron to the steel-making furnaces. These emissions occur in what is known as the cast house and escape to the atmosphere by way of roof monitors, doors, and other openings in the building. The Agency contends that USS has failed to demonstrate compliance with Rule 203(a) of Chapter 2 of the Board’s Air Pollution Control Regulations. USS on the other hand contends that its casting emissions are fugitive emissions and are therefore governed by Rule 203(f) rather than the process weight limitations of Rule 203(a) or (b) and that the blast furnace casting emissions comply with the requirements of said Rule 203(f).
«Off
It is, of course, clear that the mere determination of an emission factor for a process does not suddenly change the nature of the emissions from that process from fugitive emissions to stack emissions, etc. Whether or not emissions are fugitive in nature is determined by their physical characteristics, not by whether someone has been able to estimate an emission factor for them. Rule 203(f) appears to the Board to be very straight forward. It sets a separate standard for fugitive-type emissions but includes a proviso that says, in effect, if the emissions can be readily collected and treated, they shall fall under 203(a) and (b) regardless of whether they are not presently thus collected or whether it is industry’s practice to thus collect them. In this case there is an unfortunate lack of information concerning the conditions surrounding the casting operation. It is within the Board’s knowledge that a casting operation could entail everything from a short tapping operation into a ladle which might easily be controlled all the way to a very widespread operation containing literally acres of area which would indeed result in fugitive-type emissions.
Utilizing what information is before us in this case, the Board finds that the mere presence of an emission factor in one operation does not in and of itself provide the Agency with enough evidence to deny the USS permit application in this case. The only information before the Board at this time indicates that the casting operation at the blast furnace facility results in a fugitive-type emission of particulate matter which should be governed by Section 203(f) of the Regulations. The Board finds that the Agency erred in its denial of the USS permit application for its blast furnaces and will, therefore, order a permit to issue pursuant to said permit application.”

The Board denied the Agency’s petition for rehearing, stating:

“In support of its Motion, the Agency argues that in a permit appeal the burden is on the Petitioner to prove, based upon its application, that its emissions will not cause a violation of the Act or Regulations and that the Board failed to find that.U.S. Steel met its burden of proof. Furthermore, the Agency argues that the Board failed to find that, even if U.S. Steel’s cast house emissions are fugitive in nature, Rules 203(a) and (b) do not apply.
The intent of our Opinion was to interpret Rules 203(a) and (b) and 203(f), as well as the Rule 201 definition of ‘Fugitive Particulate Matter,’ to mean, when read together, that Rules 203(a) and (b) do not apply to fugitive emissions. Such emissions are regulated by Rule 203(f). Our interpretation of the definition of fugitive emissions is that emissions which cannot be readily collected and treated are fugitive in nature.
000 U.S. Steel had the burden of proving, based upon its application, that its emissions are fugitive in nature and that they do not violate the Act or Regulations. The Board found that, although casting emissions can vary widely as to collectibility, the only information before the Board indicated that emissions from the casting operation at U.S. Steel’s blast furnace facility are not readily collectible and are thus fugitive in nature. That conclusion was based upon information in U.S. Steel’s application and the explanation of that information in the Stipulation of Facts and Petitioner’s Brief. That same information indicates that U.S. Steel’s casting operation does not violate Rule 203(f). The Agency presented no evidence to rebut the information in the record indicating that the emissions are fugitive emissions and that they do not violate Rule 203(f). The Board, therefore, found in effect that U.S. Steel had met its burden of proof. The Board notes that its finding that the casting emissions in question are fugitive in nature applies only to U.S. Steel’s casting operations as portrayed in the record of this case and not to all cast house emissions.”

In Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 554, we recognized that the Board has both quasi-legislative and quasi-judicial functions, stating:

“The Board, which was created by the Act (Ill. Rev. Stat. 1975, ch. 111M, par. 1005(a)), serves both quasi-legislative and quasi-judicial functions within a statutorily established framework. It must determine, define, and implement the environmental control standards and may adopt rules and regulations (Ill. Rev. Stat. 1975, ch. HIM, pars. 1005(b), 1026, 1027). It has authority to conduct hearings upon, among other specified matters, complaints charging violations of the Act or of regulations thereunder and upon petitions for review of the Agency’s denial of a permit as well as authority to hold other such hearings as may be provided by rule (Ill. Rev. Stat. 1975, ch. HIM, par. 1005(d)).”

Although the present case involved an appeal from the denial of a permit, it presented the Board with a question of defining the scope of the emission standards. Webster’s Third New International Dictionary, at page 616 (1971), gives as one definition of “determine,” “to set bounds or limits to: as a: to fix the boundaries of b: to limit in extent or scope.” One of the meanings given by that dictionary for “define” is, “to mark the limits of: determine with precision or exhibit clearly the boundaries of.” (Webster’s Third New International Dictionary 592 (1971).) We believe that this function of defining the scope of the emission standards is a quasi-legislative act. On the other hand, the Board’s decision whether the emissions from the company’s casting operations were “collectible” was in the nature of a judicial act.

We dealt with a similar situation in Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276. In that case, conditions imposed by the Board on the grant of a variance to an individual company were judged against the standard applicable to quasi-legislative acts. We likened the conditions to a rule, operating prospectively, even though they were based on specific facts concerning one company. This court stated:

“In Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, this court reviewed certain noise pollution regulations of the Board, and upheld them because they were not clearly arbitrary, unreasonable, or capricious. In dealing with those board regulations we said ‘that administrative action taken under statutory authority will not be set aside unless it has been clearly arbitrary, unreasonable' or capricious.’ (59 Ill. 2d 305, 310.) We see no reason to depart from this holding when dealing with individual interim discharge standards set by the Board, rather than with statewide regulations.
«««
«nm ■j’jjg ggqjug Gf conditions, unlike the decision to grant a variance, is not quasi-judicial in nature, but rather is one manifestation of the power granted the Board to act as the policy-making body. Section 36 of the Act is a rather broad delegation to the Board of power to impose whatever conditions are necessary to effectuate as nearly as possible the policies of the Act when a variance from statewide standards is granted. It is, in a word, rule-making power, in the sense that its focus is on future conduct and its efficacy depends upon agency expertise. ‘Judicial judgment should not be substituted for administrative judgment on questions within the agency’s statutory power of rule making.’ [Citation.] The Board, unlike this court, is well equipped to determine the degree of danger which a pollutant will cause, and then to balance that public threat against an alleged individual hardship and reach a conclusion as to what limits should be placed upon a temporary variance. The power granted to the Board by section 36 is tantamount to the quasi-legislative power to make prospective regulations and orders. [Citation.] When a regulation is promulgated by an agency pursuant to a grant of legislative power, a reviewing court should not substitute its judgment as to the content of the regulation, because the legislature has placed the power to create such regulations in the agency and not in the court. [Citation.] Since in setting interim discharge standards the Board is, in effect, making future policy pursuant to the legislative delegation of section 36(a), we must be just as circumspect about interfering with the Board’s discretion in establishing variance conditions as we are in dealing with the enactment of regulations. In summary, then, the proper scope of review of conditions limiting a variance is the same as that applied to board regulations in Illinois Coal Operators Association: whether the Board’s action was arbitrary, unreasonable, or capricious.” Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276, 289-91.

Our cases clearly indicate that the Board’s quasi-legislative acts are to be upheld on review unless they are “clearly arbitrary, unreasonable or capricious” (Rockford Drop Forge Co. v. Pollution Control Board (1980), 79 Ill. 2d 271, 278; Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305), while its quasi-judicial acts are to be upheld unless they are “contrary to the manifest weight of the evidence” (Wells Manufacturing Co. v. Pollution Control Board (1978), 73 Ill. 2d 226, 234; City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482). These differing standards of review should be applied to the Board’s acts in a single case, if those involved both quasi-legislative and quasi-judicial functions. See Taylor v. Police Board (1978), 62 Ill. App. 3d 486; Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App. 3d 498.

In the present case it is urged that there was not sufficient information in the record to sustain the Board’s decision. This argument is more relevant to the Board’s finding of noncollectibility, to which the manifest weight of the evidence standard is applicable. Actually, we believe there was ample information in the record supporting the Board’s reading of Rules 201 and 203, which appears to us to be a good synthesis of somewhat ambiguous rules rather than an erroneous reading of those rules. It was supported by discussion in the Board statement promulgating the air pollution rules, including the emission standards:

“No one disputed the elimination of special provisions for open hearths or for blast furnaces. *es As for blast furnaces, very efficient gas cleaning is practiced to enable the steel companies to utilize the valuable gas, which contains much carbon monoxide, for heating purposes. As Reddy testified, ‘blast furnace gas cleaning systems normally reduce particulate loading to less than 0.01 grain per standard cubic foot to prevent fouling of the stoves where the gas is burned.’ Such a grain loading, he concluded, would suffice to bring emissions from blast furnaces with process rates from 5 to 500 tons per hour into compliance with Rule 203(a).”

(In re Emission Standards (1972), 4 Ill. P.C.B. Op. 298, 315.) This discussion, limited to “blast furnace gas” emissions, implies that the Board did not intend, in adopting Rules 203(a) and (b) emission standards, to apply those standards to blast furnace emissions related to the casting process, as opposed to “blast furnace gas,” which is apparently vented through a stack. The Board’s analysis was perhaps the most reasonable reading of the proviso of the Rule 201 definition of “fugitive particulate matter”:

“provided that nothing in this definition or in Rule 203(f) shall exempt any source from compliance with other provisions of Rule 203 otherwise applicable merely because of the absence of a stack.”

That definition seems somewhat circular at first reading. The Board’s view, making the definition turn on “collectibility,” seems to go to the heart of whether emissions are properly vented through a stack, and hence not truly “fugitive.” Even if we assume that two readings of an ambiguous provision of an administrative regulation are both reasonable, the Board’s choice must be respected, particularly where it formulated and promulgated the rule. Nor does the fact that Rule 203(d) makes specific and explicit exceptions to Rule 203 for certain processes, not including casting operations, require a different interpretation in view of the specific provisions of Rule 203(f). It is the more explicit provision, and should govern over the more general provisions of Rules 203(a) and (b), applying to all stationary emission sources except fuel-combustion emission sources and incinerators. The Board’s reading parallels our rule of statutory construction, that a more specific or particular provision prevails over the more general. See People ex rel. Fore v. Missouri Pacific R.R. Co. (1930), 342 Ill. 226; Natural Products Co. v. County of Du Page (1924), 314 Ill. 74.

With respect to applying the collectibility standard to the company’s fact situation, the Board stated:

“It is within the Board’s knowledge that a casting operation could entail everything from a short tapping operation into a ladle which might easily be controlled all the way to a very widespread operation containing literally acres of area which would indeed result in fugitive-type emissions.”

From information before the Board concerning the company’s casting operation, including approximately 11 pages of statistics in each of the four applications, it was apparent that the company’s casting operation, involving four large-capacity furnaces and ladle cars was not a “short tapping operation” which could be controlled. The stipulation stated that the emissions reached the atmosphere by means of a roof monitor, and through doors and other openings in the cast house. The particulate matter was “unavoidably” released upon contact of the molten iron and the air. A letter from the company to the Agency stated that there were not at that time any operating facilities within the United States for collecting such emissions. While the Board indicated that industry practice was not dispositive (lest adoption of low practice by an industry become a loophole in the environmental standards), the absence of even one example of the collection of such particulate emissions by stacks tends to support the Board’s conclusion concerning collectibility. Since there was adequate supporting evidence and no substantial contrary evidence, the Board’s finding that the company’s cast-house emissions were not collectible was not contrary to the manifest weight of the evidence. It is, of course, entirely possible that technological advances have now resolved or will in the future resolve the collectibility problem, in which event we assume appropriate rules will be adopted.

The Agency also complains that the Board shifted the burden of proof concerning whether the company’s facilities were complying with Rule 203(f) from the company to the Agency. This objection is without merit. There was adequate information in the applications to show that the company was not in violation of the provisions of Rule 203(f). We do not believe, however, that the issue of compliance with Rule 203(f) was even before the Board. Section 39 of the Act (Ill. Rev. Stat. 1977, ch. IIIJ2, par. 1039) requires that the Agency state reasons for denial of a permit: “If the Agency denies any permit under this Section, the Agency shall transmit to the applicant within the time limitations of this Section [90 days] specific, detailed statements as to the reasons the permit application was denied,” including “(ii) the provision of the regulations, promulgated under this Act, which may be violated if the permit were granted” (Ill. Rev. Stat. 1977, ch. 111‘2, par. 1039). The Agency’s letters did not specify any violation of Rule 203(f). Although section 40 of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1040) provides that, on review of a permit denial, “the burden of proof shall be on the petitioner,” it also states that “[t]he Agency shall appear as respondent in such hearing.” In Oscar Mayer & Co. v. Environmental Protection Agency (1978), 30 Ill. P.C.B. Op. 397, 399, the Board stated:

“[I]n a Section 40 proceeding the Agency must file within 14 days of notice, the entire record of the permit application, including the application, correspondence, and the denial. The application is necessary to establish the facts which were before the Agency for consideration. The correspondence file, if any, supplements the application insofar as it provides additional facts. The denial statement is necessary to verify that the requirement of Section 39(a) of the Act has been fulfilled. This material, in the opinion of the Board, should be sufficient to frame the issue of fact or law in controversy in any hearing on a Section 40 petition.”

We believe that the Agency had a duty, reading sections 39 and 40 of the Act together, to specify reasons for the denial, including, if it intended to raise the issue before the Board, the lack of compliance with Rule 203(f), or be precluded from raising that issue. In our judgment the sole dispute before the Board was whether Rules 203(a) and (b) applied to emissions which were subject to and in compliance with the provisions of Rule 203(f). Since we have decided that the Board’s refusal to apply Rules 203(a) and (b) to “fugitive particulate emissions” was reasonable, and that its finding that the company’s cast-house emissions were not collectible and thus were “fugitive particulate emissions” was not contrary to the manifest weight of the evidence, it follows that the appellate court erred in reversing the Board.

Accordingly, the judgment of the appellate court is reversed, and the order of the Pollution Control Board is affirmed.

Judgment reversed; order affirmed.


author: MR. JUSTICE UNDERWOOD MR. JUSTICE SIMON,

text:
    (No. 53765.
    THE VILLAGE OF OAK LAWN, Appellant, v. STEWART MARCOWITZ, Appellee.

      Opinion filed June 26, 1981.

    Modified on denial of rehearing October 19, 1981.

      Klein, Thorpe & Jenkins, Ltd., of Chicago (Gerald E. Dempsey and Sarah A. Hansen, of counsel), for appellant.
    Lapat & Sokolow, Ltd., of Chicago (Michael Lapat and David Sokolow, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, the village of Oak Lawn, filed a complaint in the circuit court of Cook County charging the defendant, Dr. Stewart Marcowitz, with operating an ambulatory surgical treatment center without a license in violation of a village ordinance. Dr. Marcowitz moved to dismiss, alleging the ordinance was unconstitutional, and the trial judge so held. We allowed the village’s motion to transfer its appeal to this court.

The village’s “Ambulatory Surgical Treatment Centers” ordinance is included as article IX of the village’s code of ordinances relating to health and sanitation. It defines such centers by adopting the definition contained in the State act:

“The term ambulatory surgical treatment center shall have the same meaning as ascribed in the ‘Ambulatory Surgical Treatment Center Act’ of 1973 as now and hereafter amended. (Chapter 11114, Section 157 — 8.3 of the Illinois Revised Statutes).” Oak Lawn, Ill., Code of Ordinances, ch. 10, art. IX, sec. 10 — 141 (1979).

A center is defined under the Ambulatory Surgical Treatment Center Act:

“(A) ‘Ambulatory surgical treatment center’ means any institution, place or building devoted primarily to the maintenance and operation of facilities for the performance of surgical procedures or any facility in which a medical or surgical procedure is utilized to terminate a pregnancy, irrespective of whether the facility is devoted primarily to this purpose. Such facility shall not provide beds or other accommodations for the overnight stay of patients. Individual patients shall be discharged in an ambulatory condition without danger to the continued well being of the patients or shall be transferred to a hospital.
The term ‘ambulatory surgical treatment center’ does not include (1) any institution, place, building or agency required to be licensed pursuant to the ‘Hospital Licensing Act’, approved July 1, 1953, as heretofore or hereafter amended.
(2) any person or institution required to be licensed pursuant to ‘An Act in relation to the licensing and regulation of homes for the maintenance, care, or nursing of persons who are ill, aged or physically infirm’, approved July 17, 1945, as heretofore or hereafter amended;
(3) hospitals or ambulatory surgical treatment centers maintained by the State or any department or agency thereof, where such department or agency has authority under law to establish and enforce standards for the hospitals or ambulatory surgical treatment centers under its management and control;
(4) hospitals or ambulatory surgical treatment centers maintained by the Federal Government or agencies thereof; or
(5) any place, agency, clinic, or practice, public or private, whether organized for profit or not, devoted exclusively to the performance of dental or oral surgical procedures.” Ill. Rev. Stat. 1979, ch. 11114, par. 157 — 8.3(A).

The ordinance in many other respects closely resembles the State act and implementing regulations adopted by the Department of Public Health. It requires detailed information regarding ownership and operation of a center; a description, including architectural plans, of the facility, and documentation of compliance with all applicable building and safety codes; a description of the services to be provided and the names, addresses, qualifications, and licenses of all personnel; requires the facility to be under the medical supervision of one or more physicians; permits surgical procedures to be performed only by a physician privileged to perform surgery in at least one Illinois hospital; requires at least $1 million liability insurance and notice to the village medical director of any change in staff, surgery performed, or ownership. An “organization plan” detailing duties and responsibilities of staff personnel must be submitted to the medical director and regularly reviewed, and a consulting committee must be appointed to establish and enforce professional standards. Physicians operating in the facility must be active staff members of a licensed hospital within 15 minutes’ travel time or five miles. A policies and procedures manual must be prepared for approval by the consulting committee and must be followed at all times. In addition to the presence of a qualified physician, an experienced registered nurse and at least one person certified in “Basic Life Support” shall be on the premises while patients are present. Each facility must have either a certified medical technician to perform laboratory procedures or a written agreement with a licensed laboratory. The ordinance specifies certain equipment which must be available and certain standards to be maintained in preserving materials and supplies. Specific testing and procedures for preoperative and post-operative care and record keeping are mandated. Only first-trimester abortions may be performed, and their performance requires specific testing, a diagnosis of pregnancy based upon chemical and physical examination by the operating physician, a 24-hour wait between the initial examination and abortion, and preabortion counseling by qualified personnel. Pathological examination of all tissue removed during an abortion and a written report of the findings are necessary, together with a confidential report, to the medical director, of each abortion performed or attempted. There must be at least four inspections of a licensed facility each year, and licenses may be revoked for violation of ordinance provisions. Violators may also be fined $500 per day for each day a violation continues. A severability clause is included indicating an intent to enact any part of the ordinance remaining following a declaration of partial invalidity. An initial license fee of $5,000, plus annual renewal fees of $2,000, are required.

There is no doubt of the village’s authority to enact ordinances imposing reasonable regulations for the purpose of protecting the health and safety of its residents. (City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, appeal dismissed (1980), 446 U.S. 931, 64 L. Ed. 2d 783, 100 S. Ct. 2145 (ordinance requiring snow removal from sidewalk fronting property); City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40 (special use permit for sheltered care home); Schuringa v. City of Chicago (1964), 30 Ill. 2d 504, cert. denied (1965), 379 U.S. 964, 13 L. Ed. 2d 558, 85 S. Ct. 655 (fluoridation of public water supply is reasonable exercise of police power).) The Ambulatory Surgical Treatment Center Act expressly recognizes the municipality’s authority:

“Nothing in this Act shall be construed to impair or abridge the power of municipalities to license and regulate ambulatory surgical treatment centers, provided that the municipal ordinance requires compliance with at least the minimum requirements developed by the Department pursuant to this Act.” Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.4.

Defendant urges, however, that the ordinance upon which the complaint against him is based is an unconstitutional restriction upon the decision by a woman and her doctor to obtain a first-trimester abortion; that it violates equal protection requirements in that it requires a permit for a facility in which a single abortion is performed, but does not require a license for a facility in which other surgical procedures are performed unless the facility is primarily devoted to that purpose; and that the ordinance is so vague and indefinite that defendant is unable to determine what type of conduct is proscribed. It is readily apparent, of course, from the definition of a center, that the ordinance requirements would be triggered by the performance of a single abortion. Since, on a motion to dismiss, all well-pleaded allegations in the complaint are taken to be true (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540), and no evidence was presented as to the effect of these regulations upon the abortion decision, we are limited to a consideration of the validity of the ordinance on its face.

A review of the relevant decisions will be helpful. The United States Supreme Court has recognized that the fundamental right of privacy, including a woman’s qualified right to terminate her pregnancy, is protected against State action under the fourteenth amendment. (Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705; Doe v. Bolton (1973), 410 U.S. 179, 35 L. Ed. 2d 201, 93 S. Ct. 739.) Roe v. Wade stated a three-part test to determine the extent to which a State may regulate abortions:

“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” 410 U.S. 113, 164-65, 35 L. Ed. 2d 147, 183-84, 93 S. Ct. 705, 732.

The lower Federal courts originally interpreted this broad language as precluding almost any type of restriction upon first-trimester abortions. See, e.g., Friendship Medical Center, Ltd. v. Chicago Board of Health (7th Cir. 1974), 505 F.2d 1141, cert. denied (1975), 420 U.S. 997, 43 L. Ed. 2d 680, 95 S. Ct. 1438; Word v. Poelker (8th Cir. 1974), 495 F.2d 1349; Nyberg v. City of Virginia (8th Cir. 1974), 495 F.2d 1342.

Subsequent opinions of the Supreme Court, however, indicated that the lower court interpretations had been unnecessarily restrictive. That court has now recognized that States have an interest sufficiently compelling to justify some impingement upon the first-trimester-abortion procedure so long as no direct restrictions are placed upon the patient’s and physician’s decision to abort. In Connecticut v. Menillo (1975), 423 U.S. 9, 46 L. Ed. 152, 96 S. Ct. 170, it was recognized that a State may require that abortions be performed only by a licensed physician. The court stated, “Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State’s interest in maternal health is predicated upon the first trimester abortion’s being as safe for the woman as normal childbirth at term, and the predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman.” 423 U.S. 9, 10-11, 46 L. Ed. 2d 152, 154-55, 96 S. Ct. 170-71.

In Planned Parenthood v. Danforth (1976), 428 U.S. 52, 49 L. Ed. 2d 788, 96 S. Ct. 2831, the court upheld portions of the Missouri abortion statute which required the woman’s written consent prior to an abortion and also required record keeping and reporting of performed or attempted abortions with provision for the confidentiality and privacy of the patient. The court did not consider these provisions to impact in any legally significant way upon the abortion decision or the physician-patient relationship despite the fact that similar requirements did not exist as to other surgical procedures. In Beal v. Doe (1977), 432 U.S. 438, 53 L. Ed. 2d 464, 97 S. Ct. 2366, the court upheld Pennsylvania’s refusal to extend medicaid payments to nontherapeutic abortions as not inconsistent with the Social Security Act. The State’s interest in encouraging childbirth was considered sufficient to withhold funding of nontherapeutic abortions so long as there was no direct restriction upon the abortion decision. In a case decided the same day as Beal the court held there was no equal protection violation in Connecticut’s refusal to fund nontherapeutic abortions although that State’s policy was to pay expenses incident to childbirth. (Maher v. Roe (1977), 432 U.S. 464, 53 L. Ed. 2d 484, 97 S. Ct. 2376.) The court has also held that a State which participates in the medicaid program is not obligated under the Social Security Act to fund those medically necessary abortions for which Federal reimbursement was unavailable under the Federal law. Harris v. McRae (1980), 448 U.S. 297, 65 L. Ed. 2d 784, 100 S. Ct. 2671; Williams v. Zbaraz (1980), 448 U.S. 358, 65 L. Ed. 2d 831, 100 S. Ct. 2694.

In H. L. v. Matheson (1981), 450 U.S. 398, 400, 67 L. Ed. 2d 388, 393, 101 S. Ct. 1164, 1166, a Utah statute requiring a physician to “notify, if possible,” the parents or guardian of a minor upon whom an abortion was to be performed was unsuccessfully challenged. The pregnant minor who asserted the statute was overbroad in that it could be construed to apply to all unmarried minor girls, was held to lack standing since she failed to allege that she or any member of the class she purported to represent was mature or emancipated. The statute was found to serve important State interests, to be narrowly drawn to serve those interests, and not violative of any constitutional guarantee as applied to an unemancipated minor living with and dependent upon her parents and making no claim of maturity. We note, too, that the Supreme Court has affirmed without opinion the decision of a three-judge district court upholding an Indiana statute requiring hospitalization for all second-trimester abortions. Gary-Northwest Indiana Women’s Services, Inc. v. Bowen (N.D. Ind. 1980), 496 F. Supp. 894, aff’d sub nom. Gary-Northwest Indiana Women v. Orr (1981), 451 U.S. 934, 68 L. Ed. 2d 321, 101 S. Ct. 2012.

Normally, the burden is initially upon one challenging a municipal ordinance to establish its unconstitutionality. (Chicago v. Hertz Commercial Leasing Corp. (1978), 71 Ill. 2d 333, cert. denied (1978), 439 U.S. 929, 58 L. Ed. 2d 322, 99 S. Ct. 315; Coryn v. City of Moline (1978), 71 Ill. 2d 194.) However, a statute or ordinance which impinges upon a constitutionally recognized fundamental right is presumptively invalid and is validated only if a compelling State interest for that action can be shown. (Harris v. McRae (1980), 448 U.S. 297, 312, 65 L. Ed. 2d 784, 801, 100 S. Ct. 2671, 2685; Carey v. Population Services International (1977), 431 U.S. 678, 686, 52 L. Ed. 2d 675, 685, 97 S. Ct. 2010, 2016; Roe v. Wade (1973), 410 U.S. 113, 155-56, 35 L. Ed. 2d 147, 178-79, 93 S. Ct. 705, 728, and cases there cited.) The fundamental right here involved, of course, is a woman’s privacy right to decide in cooperation with her doctor whether to obtain an abortion. As to those abortion regulations which do not unduly burden that fundamental right, the Supreme Court has applied only a rational-basis test. (Bellotti v. Baird (1976), 428 U.S. 132, 49 L. Ed. 2d 844, 96 S. Ct. 2857.) If the ordinance is “abortion neutral” and does not burden the first-trimester-abortion decision, or obstruct its effectuation, the village need only show a rational relationship to the legitimate State interest of protecting the health and safety of the woman. (Planned Parenthood v. Danforth (1976), 429 U.S. 52, 49 L. Ed. 2d 788, 96 S. Ct. 2831; Baird w. Department of Public Health (1st Cir. 1979), 599 F.2d 1098.) While it is clear that the woman’s right to decide whether to abort may not be restricted during the first trimester, Roe and the post-Noe decisions also make clear the fact that regulations aimed at protecting the health and safety of individuals are valid if the regulations are reasonably related to this State interest, even though they apply to abortions as well as to other surgical procedures of similar complexity. Thus, in Roe the court held that a State may not burden the abortion decision or regulate the abortion procedure in the first trimester, but may regulate conditions under which abortions, like any other medical procedure, are performed. The court stated:

“The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal ‘abortion mills’ strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed.” 410 U.S. 113, 150, 35 L. Ed. 2d 147, 175, 93 S. Ct. 705, 725.

In Planned Parenthood v. Danforth it was stated that the Roe court “emphatically rejected, however, the proffered argument ‘that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. [Citation.] Instead, this right ‘must be considered against important state interests in regulation.’ ” (428 U.S. 52, 60-61, 49 L. Ed. 2d 788, 800, 96 S. Ct. 2831, 2837.) In Baird v. Department of Public Health (1st Cir. 1979), 599 F.2d 1098, upholding a Massachusetts clinic-licensure law, the court noted, “There is room under Roe for states to apply the same licensing standards to abortion facilities as they apply to like facilities performing medically analogous procedures, as long as they do not do so in a way that evades Roe by impinging on a woman’s right to elect and obtain an abortion during the first trimester.” (599 F.2d 1098, 1102. See also Hodgson v. Lawson (8th Cir. 1976), 542 F.2d 1350.) In upholding New York’s health-service-facilities statute the United States district court cited Roe and Connecticut v. Menillo (1975), 423 U.S. 9, 46 L. Ed. 2d 152, 96 S. Ct. 170, stating, “Even as to the first trimester of abortion, then, the state has the power — and responsibility — to ensure that abortions are performed with due regard for the health and safety of the patient.” Westchester Women’s Health Organization, Inc. v. Whalen (S.D.N.Y. 1979), 475 F. Supp. 734, 739.

These decisions illustrate that first-trimester abortions are not immune from regulations which do not significantly burden the woman’s decision and which have a reasonable relationship to the health and safety of the patients. The question, however, is whether defining a “center,” as this ordinance does, to include any facility in which a single abortion is performed, is constitutionally permissible when other medically analogous procedures are included within the ordinance only if the facility is primarily devoted to the performance of such procedures. The ordinance is certainly not “abortion neutral,” as was the Massachusetts clinic-licensure statute upheld in Baird. Legislation which requires a permit and a substantial fee, and regulates in some detail a facility in which a single abortion is performed, but exempts facilities in which it is conceivable that 49% of the activity involves the performance of other, but not necessarily less hazardous, medical procedures is, in our judgment, simply incompatible with the Supreme Court’s interpretation of equal protection and privacy standards. (Planned Parenthood of Cent. Mo. v. Danforth (1976), 428 U.S. 52, 67, 81, 49 L. Ed. 2d 788, 803-04, 811-12, 96 S. Ct. 2831, 2840, 2846; Baird v. Department of Public Health (1st Cir. 1979), 599 F.2d 1098, 1102; Hodgson v. Lawson (8th Cir. 1976), 542 F.2d 1350, 1357-58; Friendship Medical Center, Ltd. v. Chicago Board of Health (7th Cir. 1974), 505 F.2d 1141, 1152-53.) Put another way, the ordinance creates a class involving abortion surgery and another class involving nonabortion surgery. The ordinance would apply to a class of doctors and pregnant women simply because they are involved with abortion surgery, but would not apply to the class of doctors and individuals who are involved with nonabortion surgery even though it may be the more hazardous. There is apparent no rational relationship to any legitimate State interest for the unequal treatment which these classes receive under the ordinance. Whether viewed from the standpoint of the doctor’s equal protection claim or the woman’s privacy right, we believe that portion of the definition of an ambulatory surgical treatment center which relates to abortions cannot stand. It severely restricts the fundamental privacy right to secure a first-trimester abortion, and it does so in a manner not uniformly applicable to medically analogous surgical procedures. (Doe v. Bolton (1973), 410 U.S. 179, 199, 35 L. Ed. 2d 201, 216-17, 93 S. Ct. 739, 751; Doe v. Hale Hospital (1st Cir. 1974), 500 F.2d 144, 147; Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action (8th Cir. 1977), 558 F.2d 861, 868 n.7.) Given the substantial licensing fee required and the detailed regulation involved, it seems inevitable that medical practitioners who might otherwise perform abortions for their regular patients, but whose facilities were not primarily devoted to surgery, would choose not to qualify under the ordinance. The right of a woman considering a first-trimester abortion to seek the advice and services of her obstetrician, gynecologist, or other physician in whom she has trust and confidence may not be so drastically curbed. In short, the effect of the ordinance is a form of antiabortion discrimination clearly precluded by equal protection and privacy considerations. The village may have an interest in ensuring that abortion procedures are performed in the manner prescribed, but that interest is insufficient, under Roe and its progeny, to justify the unequal application of this ordinance. If in fact its purpose is the protection of the village residents through the regulation of surgical procedures, including abortions, that purpose can be constitutionally achieved by elimination from the ordinance of the impermissible portion of the provision defining an ambulatory surgical treatment center. We accordingly hold unconstitutional the following italicized portion of that definition as it is incorporated in the Oak Lawn ordinance from section 3 of the Ambulatory Surgical Treatment Center Act (Ill. Rev. Stat. 1979, ch. 111%, par. 157-8.3(A)):

“ ‘Ambulatory surgical treatment center’ means any institution, place or building devoted primarily to the maintenance and operation of facilities for performance of surgical procedures or any facility in which a medical or surgical procedure is utilized to terminate a pregnancy, irrespective of whether the facility is devoted primarily to this purpose.”

We are immediately confronted with the question whether the balance of the ordinance may stand with the invalid portion excised. Included in the ordinance is a severability clause declaring the legislative intent of the village president and board of trustees to adopt the remainder of the ordinance should any part of it be declared unconstitutional. (Oak Lawn, Ill., Code of Ordinances, ch. 10, art. IX, sec. 10 — 157 (1979).) While we have reservations regarding the conclusiveness of that clause (see Akron Center for Reproductive Health, Inc. v. City of Akron (N.D. Ohio 1979), 479 F. Supp. 1172) application of the ordinary severability test produces the same result. That test was stated in City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 490:

“ ‘If what remains after the invalid portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render the entire section unconstitutional unless it can be said that the General Assembly would not have passed the statute with the invalid portion eliminated.’ ” (People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321.)

(See also People v. Bradley (1980), 79 Ill. 2d 410, 419; Livingston v. Olgilvie (1969), 43 Ill. 2d 9, 23; Fiorito v. Jones (1968), 39 Ill. 2d 531.) The remaining portion of the ordinance is complete in itself and susceptible to independent enforcement. Given the declared purpose of insuring “high standards of care and the maximum safety of the patient” (Code of Ordinances, ch. 10, art. IX, sec. 10 — 140) there is, it seems to us, no reason to believe it would not have been adopted even though its application was limited to centers primarily devoted to surgical procedures, including abortions.

With the invalid portion of the ordinance removed, much of the remaining portion of the ordinance becomes “abortion neutral.” That which is not, such as the provisions regulating the conditions under which obstetrical and gynecological procedures, including abortions, may be performed do not unduly burden the abortion decision. Additionally, the remainder of the ordinance does have a rational relationship to the protection of the health and welfare of patients. Doe v. Bolton (1973), 410 U.S. 179, 35 L. Ed. 2d 201, 93 S. Ct. 739, recognized that appropriately licensed institutions other than hospitals could adequately provide for the health of the patient desiring an abortion, thus implicitly acknowledging the licensing restriction as a reasonable regulation of the conditions under which an abortion may be performed. Connecticut v. Menillo (1975), 423 U.S. 9, 46 L. Ed. 2d 152, 96 S. Ct. 170, upheld restricting the performance of abortions to licensed physicians, and Planned Parenthood v. Danforth (1976), 428 U.S. 52, 49 L. Ed. 2d 788, 96 S. Ct. 2831, validated medical record keeping, confidential abortion reporting, and written, informed-consent requirements.

The 24-hour period required by the ordinance to elapse between the initial examination and terminaton of the pregnancy requires more detailed consideration. It provides:

“Twenty-four hours shall be allowed between the initial examination and termination of pregnancy to permit the reporting to and reviewing of all laboratory tests with the patient by the facility physician.” (Oak Lawn, Ill., Code of Ordinances, art. X, sec. 10 — 152(B)(1).)

While the Supreme Court has not addressed the question of govemmentally prescribed delay of this nature, the lower Federal courts have generally ruled both 48-hour and 24-hour delays invalid under a strict-scrutiny standard as unduly burdening a woman’s right to an abortion during the first trimester of pregnancy. Among the Federal courts of appeal the following action has occurred: In Womens Services v. Thone (8th Cir. 1980), 636 F.2d 206, a 48-hour waiting period provided by the Nebraska abortion statute was held violative of due process under a strict-scrutiny standard. In Wynn v. Carey (7th Cir. 1979), 599 F.2d 193, a 48-hour waiting period required by the Illinois abortion act was held unconstitutional. Charles v. Carey (7th Cir. 1980), 627 F.2d 772, invalidated a 24-hour waiting period requirement of the Illinois abortion statute, stressing “delay attended by increased risk as the pregnancy progresses, especially for working women or women who must travel far, either arranging for overnight accommodations or making two trips.” (627 F.2d 772, 785.) In Wolfe v. Schroering (6th Cir. 1976), 541 F.2d 523, the court upheld Kentucky’s 24-hour waiting period, noting that it was not claimed that the delay significantly burdened the abortion process, and that an exemption was provided for emergency situations in which there was “ ‘imminent peril substantially endangering the life of the woman (541 F.2d 523, 526).’ ” Friendship Medical Center, Ltd. v. Chicago Board of Health (7th Cir. 1974), 505 F.2d 1141, one of the earlier cases, invalidated Chicago board of health regulations containing a 24-hour-waiting-period requirement. The court did not specifically address that issue but viewed the entire board action as impermissibly attempting to regulate first-trimester abortions. Two other courts of appeal, while not speaking to the question of delay, have invalidated entire regulatory plans. In Nyberg v. City of Virginia (8th Cir. 1974), 495 F.2d 1342, a municipal hospital resolution prohibiting nontherapeutic abortions was voided, and in Word v. Poelker (8th Cir. 1974), 495 F.2d 1349, a city ordinance regulating abortion clinics was struck down.

Two of the most recent court of appeals decisions reversed district court judgments upholding the validity of 24-hour waiting periods. (Akron Center for Reproductive Health, Inc. v. City of Akron (6th Cir. 1981), 651 F.2d 1198, reversing 479 F. Supp. 1172 (N.D. Ohio 1979); Planned Parenthood League v. Bellotti (1st Cir. 1981), 641 F.2d 1006, reversing 499 F. Supp. 215 (D. Mass. 1980).) Other district courts have invalidated both 48- or 24-hour periods in Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft (W.D. Mo. 1980), 483 F. Supp. 679 (48 hours invalid), Margaret S. v. Edwards (E.D. La. 1980), 488 F. Supp. 181 (24 hours invalid), and Women’s Community Health Center, Inc. v. Cohen (D. Me. 1979), 477 F. Supp. 542 (48 hours invalid).

The courts which have voided the 24-hour delay have emphasized the increased burden upon the woman, in that the inconvenience and additional expense of two trips or an overnight stay become necessary, the risk increases as the pregnancy progresses, and additional emotional stress occurs, results which were considered to outweigh the possibility that abusive medical practices would be eliminated in some instances. (Akron Center for Reproductive Health, Inc. v. City of Akron; Charles v. Carey.) Others have thought difficulties in scheduling the second visit to the doctor might prolong the delay to as much as three to five days and thus shift a first-trimester abortion into the second trimester (Planned Parenthood League v. Bellotti; Margaret S. v. Edwards), and the inflexibility of a uniformly mandatory delay has been criticized. Planned Parenthood League v. Bellotti; Akron Center v. City of Akron.

In the case before us no evidence was offered by defendant in support of his motion to dismiss, and our consideration is limited to the necessary consequences of the ordinance provisions. Among those is the necessity for the woman to visit the doctor on two occasions at least 24 hours apart. While we have no evidence as to increased physical hazard and emotional trauma, we may judicially notice that some additional expense in the form of overnight accommodations or a second trip is a necessary consequence of the 24-hour delay required by the ordinance. For those of sharply limited means, any additional expense will be something of a burden. Too, the inflexibility of the ordinance is apparent in that it imposes the same delay upon both the informed and the uninformed. It is not beyond the reach of judicial notice that those seeking defendant’s services would include both women referred by other physicians as well as those seeking an initial diagnosis. The former may have been advised and counseled by their family physicians in reaching a decision to seek an abortion. For them the additional testing and delay required by the ordinance may well serve a less valuable purpose than for the women who are not certain they are pregnant or are totally uninformed and seeking information regarding abortion possibilities. But there is, we believe, some benefit even to the former in the verification of pregnancy and the opportunity for further informed reflection and consideration of the variety of factors influencing a decision.

While we acknowledge there to be very real concerns in even a 24-hour delay and respect the judgment of those courts which have struck them down, it seems to us that there is a tendency to minimize the importance of the countervailing considerations. We are not convinced that the interest of the State in assuring that abortion decisions are made only on a voluntary, informed and considered basis is not a substantial and compelling one. A decision to abort or not to abort is of an extraordinary character and once executed, is irrevocable. It may have far reaching consequences. Because of its unique nature, we believe the State’s interest in assuring the integrity of that decision is compelling. Despite the concerns earlier mentioned, we cannot conclude on the record before us that the 24-hour waiting period required by this ordinance imposes an impermissible burden upon a woman’s abortion decision.

Other provisions of the ordinance calling for details of the ownership, design layout, personnel and organization plans, and policy procedures may add some administrative costs to health care provided by the centers. These basic operating standards are imposed, however, as reasonable requirements designed to achieve the State interest of insuring that such centers are managed and controlled under ethical and licensing requirements similar to those prevailing throughout the medical profession. We find nothing unreasonable in these provisions concerning minimum standards for health care of all patients, including the additional requirements for obstetrical and gynecological procedures, considering the State’s interest in protecting the health and safety of all center patients.

“The fact that an abortion clinic must conform to minimum health and safety standards would not in any way coerce a woman into not having an abortion; indeed, the opposite effect would probably result in that a woman would be assured that certain health and safety standards had been met. While the application of [the New York health service facilities statute] to abortion facilities may have the effect of increasing the cost of an abortion at such a facility, such an effect does not constitute undue interference with the abortion decision.” (Westchester Women’s Health Organization, Inc. v. Whalen (S.D.N.Y. 1979), 475 F. Supp. 734, 741.)

As the Supreme Court stated in H. L. v. Matheson (1981), 450 U.S. 398, 413, 67 L. Ed. 2d 388, 400, 101 S. Ct. 1164, 1173, upholding the Utah parental notice statute, “The Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions.”

Nor are we persuaded by defendant’s argument that the ordinance is void for vagueness. The requirements it establishes are sufficiently definite to allow a person of ordinary sensibilities to understand what is required. Rose v. Locke (1975), 423 U.S. 48, 46 L. Ed. 2d 185, 96 S. Ct. 243; People v. Schwartz (1976), 64 Ill. 2d 275, cert. denied (1977), 429 U.S. 1098, 51 L. Ed. 2d 545, 97 S. Ct. 1116; People v. Witzkowski (1972), 53 Ill. 2d 216, appeal dismissed for want of final judgment (1973), 411 U.S. 961, 36 L. Ed. 2d 682, 93 S. Ct. 2162, appeal dismissed for want of substantial Federal question (1977), 434 U.S. 883, 54 L. Ed. 2d 169, 98 S. Ct. 253.

We accordingly reverse the judgment of the circuit court of Cook County and remand the cause for trial on the merits.

Reversed and remanded.

MR. JUSTICE SIMON,

dissenting:

As the majority acknowleges, the overwhelming weight of authority invalidates waiting periods. In fact, the majority does not point to a single reviewing court, Federal or State, which accepts its position. Only one Federal circuit court opinion has ever sustained a waiting period (Wolfe v. Schroering (6th Cir. 1976), 541 F.2d 523), and it did so on the ground that no burden on the abortion decision was asserted. Since the same circuit later struck down a 24-hour waiting period (Akron Center for Reproductive Health, Inc. v. City of Akron (6th Cir. 1981), 651 F.2d 1198), the earlier result seems to prove only that it turned on a defect in pleading. The few Federal district court decisions upholding waiting periods have been reversed. The law on this subject can conservatively be described as well settled.

The majority does not pretend that the unanimous view of the Federal courts on this question is clearly or intolerably wrong, and concedes that the concerns motivating that view are “very real,” and the decisions worthy of respect. Nor does this court base its disagreement on any fresh or improved idea, anything that might contribute to the discussion of the issue. The court simply leans upon a theory that has been squarely considered and rejected by other courts. Resolving issues that were inherently difficult and therefore uncertain when they first arose is precisely what precedent is supposed to accomplish. The lower Federal courts’ views are not binding on this court, but I believe they are entitled to more deference than the majority gives them. We are not confronting a question of first impression, and should not dispose of it as if we were. The majority seems to feel that when it comes to abortion, there is no law until the United States Supreme Court forces it upon us. The Supreme Court should not be obliged to spend its time putting the magic stamp of approval on well-understood law so as to make it formally binding on courts in other jurisdictions.

This court’s departure from the settled Federal view of the matter is especially mischievous in view of the concurrent jurisdiction of the Illinois and Federal courts. The latter can enjoin enforcement of the Oak Lawn ordinance and similar laws. Indeed, because Charles v. Carey (7th Cir. 1980), 627 F.2d 772, is binding precedent in every Federal court in Illinois, any Federal court in this State (and probably also in the United States) would issue an injunction against the 24-hour waiting period upon application. The result of the majority’s decision is that, for the indefinite future, cases will turn on which side gets to which courthouse first. That is not the kind of law the public can understand or respect. In our plural system of coexisting Federal and State jurisdictions, complete harmony between decisions of the parallel systems can be neither achieved nor expected. But that pluralistic system can be accommodated more prudently and wisely by striving for consistency between Federal and State decisions unless a strong reason for an opposite result is evident. In the interest of uniformity, the prudent thing for this court to do is to go along with the Federal courts, because there is no strong reason not to.

Apart from the force of precedent, I disagree with the majority on the merits. They explain how the 24-hour waiting period creates a legally significant burden on the decision to abort, which the United States Supreme Court has held to be a fundamental right (Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705), and correctly recite that it is therefore presumptively unconstitutional and can be upheld only if the village demonstrates that the waiting period is necessary to serve a compelling village interest. The majority justifies the waiting period by finding a compelling interest in assuring that the abortion decision is informed and considered. I do not find that justification compelling. In fact, I doubt it could survive even a test of reasonableness.

First, the ordinance itself tells us what the waiting period is for. It is not to give time for reflection, but for laboratory reports. The village, of course, has offered no evidence that 24 hours is needed for that purpose, and it seems unlikely, even if new lab reports are needed. Many patients will already have lab reports from their own doctors, and so will not need new ones. But the waiting period needlessly applies even to them. When the ordinance expressly states the purpose for the waiting period, I see no call for this court to invent others.

Second, even if the State interest the majority relies on is compelling, the 24-hour rule is not necessary for the purpose. “[O] ther courts have consistently found *** that virtually all women have given considerable thought to their decision to have an abortion long before they actually seek one.” (Planned Parenthood League v. Bellotti (1st Cir. 1981), 641 F.2d 1006, 1015.) The village does not suggest that Dr. Marcowitz’s patients are unusually impetuous.

Third, the majority’s idea is that women should think more carefully about abortion than other surgery (for which the ordinance provides no waiting period) because the consequences are so serious and irrevocable. But are they, medically? A woman who aborts one child can have another. Many types of surgery involve greater risk of complications. The waiting period cannot be justified on the basis of the village’s interest in protecting health and safety, which is what the whole ordinance is supposedly about.

A decision to abort can no doubt have long-term personal and social consequences. But it is not obvious, and the village has not shown, that a vasectomy or sterilization or many other surgical procedures, for which no waiting period is required by the ordinance, do not also have serious and irrevocable consequences.

The real difference with abortion — what is serious and irrevocable — is the moral aspect. The waiting period gives women time to think again before deciding to go through with an abortion, because abortion, while a fundamental constitutional right, may be a moral wrong. But neither the village nor this court is willing to espouse this justification for the waiting period openly, and, in any event, I do not believe it would be constitutionally sufficient. It is too much like a straightforward attempt to discourage abortion; i.t cuts too far into the basic constitutional decision that abortion is permissible. Could a State require a waiting period before one exercises other fundamental rights the morality of which some might question, such as publishing a scurrilous newspaper, buying contraceptives, or attending a lewd movie? Obviously not, and I therefore do not see how the waiting period for abortion can be constitutionally justified by the importance or nature of the decision.

I conclude that the waiting period is unconstitutional. I have problems with some other sections of the ordinance as well. For example, Dr. Marcowitz must pay a fee of $5,000 initially and $2,000 annually; the size of the initial fee in relation to the annual fee appears suspect. Then, the requirement for hospital staff membership may preclude abortion clinics if no nearby hospital will grant staff privileges to a physician who performs abortions. But there is little point in elaborating. If one views the ordinance as a whole, including the peculiar definition which the court has correctly stricken down, the laboratory tests required for abortion and nothing else, and the waiting period required for abortion and nothing else, even though the patient may already have all laboratory tests, the ordinance “comes into focus” (Planned Parenthood v. Danforth (1976), 428 U.S. 52, 79, 49 L. Ed. 2d 788, 810, 96 S. Ct. 2831, 2845) as unmistakably anti-abortion, and therefore invalid. I would affirm the circuit court.