source: Caselaw Access Project

author: MR. JUSTICE WARD MR. JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 53203.
    CHARLES A. GETTO, Appellee, v. THE CITY OF CHICAGO et al., Appellants.

      Opinion filed June 4, 1981.

    Rehearing denied October 19, 1981.

      William R. Quinlan, Corporation Counsel, of Chicago (Robert R. Retke, Edmund Hatfield, and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellant City of Chicago.
    James R. Bryant, Jr., L. Bow Pritchett, R. Dean Irwin, and Michael J. Karson, of Chicago, for appellant Illinois Bell Telephone Company.
    Arthur C. Thorpe, Stewart H. Diamond, and Jack M. Siegel (Klein, Thorpe & Jenkins, Ltd.; Ancel, Glink, Diamond & Murphy, P.C.; and Siegel & Stonesifer, Ltd., of counsel), for appellants City of Evanston, et al.

    Sidney Z. Karasik and Leonard E. Handmacher, of Chicago, for appellee.
    Richard G. Ferguson, Laurence D. Lasky, Paul W. Schroeder, and William P. Suriano, of Chicago (Isham, Lincoln & Beale, of counsel), for amicus curiae Commonwealth Edison Company.
    Robert A. Helman, Susan Getzendanner, Stephen J. Mattson, David K. Staub, and Richard J. Klein, of Mayer, Brown 8c Platt, of Chicago, for amicus curiae Northern Illinois Gas Company.
   MR. JUSTICE WARD

delivered the opinion of the court:

This case presents the second interlocutory appeal filed by the Illinois Bell Telephone Company (Bell) and the city of Chicago arising out of a class action suit brought against both parties in July of 1977 by Charles A. Getto. In this suit, filed on behalf of Getto and all persons similarly situated, the plaintiff challenged the method employed by the defendants in calculating the city’s municipal message tax. This ordinance imposed a tax “upon all persons engaged in the business of transmitting messages by means of electricity at the rate of five per cent of the gross receipts from such business” originating within the corporate boundaries of the city of Chicago. In calculating the message tax, the defendants interpreted the term “gross receipts,” upon which the tax was based, to include the total amount of income received through customer billing and other customer sources as well as the 5% message tax on these receipts.

This manner of taxation, it was argued, resulted in an illegal “tax on a tax.” The burden of the tax was then passed on to Bell’s customers pursuant to section 36(a) of the Public Utilities Act (Ill. Rev. Stat. 1977, ch. Ill 2/3, par. 36(a)), which permits utilities subject to a municipal message tax to collect, as an additional charge from their customers, an amount equal to the tax paid or any part of the tax. This section also allows the utility to impose an additional service charge of 3% of the message tax on each subscriber to cover costs of accounting.

On December 19, 1978, the circuit court of Cook County held that the plaintiff, “for himself and on behalf of all other persons similarly situated,” had standing to challenge the validity of the city’s message tax; that the court and not the Illinois Commerce Commission had jurisdiction over the parties and subject matter of the case; and that the defendants’ interpretation of “gross receipts” resulted in an “additional charge to Bell’s customers [which was] unauthorized, illegal, irrational, unreasonably burdensome and oppressive to the plaintiff and the class he represents.” Based on this the court allowed the plaintiff to maintain a class action. The court also entered a preliminary injunction ordering Bell to “set aside and segregate” that portion of the message tax receipts which exceeded the authorized 5% rate, as well as that portion of the accounting charge which had been erroneously imposed. As part of its order the court directed that any amount which should erroneously be collected contrary to the injunction should be deposited in a special protest fund to be administered and maintained by the court.

The defendants then filed their first interlocutory appeal in the appellate court under Rule 307(a) (73 Ill. 2d R. 307(a)), and this court granted direct appeal here under Rule 302(b) (73 Ill. 2d R. 302(b)). In Getto v. City of Chicago (1979), 77 Ill. 2d 346 (Getto I), this court held that since the actual burden of the message tax was borne by Bell’s customers, the plaintiff class had standing to bring suit; that considering the limits on the Illinois Commerce Commission’s statutory authority to provide an adequate remedy, the plaintiff was not required to exhaust his administrative remedies; that the circuit court and not the Commission had jurisdiction over the dispute; and finally that the defendants’ construing the term “gross receipts” to include the municipal message tax was “erroneous.” The portion of the order of the circuit court appealed from was affirmed, and the cause was remanded for further proceedings.

Upon remandment to the circuit court, the plaintiff moved for and was given leave to join 105 additional municipalities and four other telephone companies as parties defendant. The plaintiff also filed six motions with the court requesting that the preliminary injunction issued on December 19, 1978, be made permanent; that the court appoint a trustee to take custody and control of the special protest fund; that a new definition of the class members in the suit, tendered by the plaintiff, be certified by the court; that the city of Chicago and Bell comply with all pending discovery requests; that the court appoint an accounting firm to conduct an audit of all message tax returns filed by Bell with the city since December 1, 1955, which was when the message tax ordinance was enacted; and that the court grant whatever further relief might be appropriate.

Both Bell and the city filed objections to these motions. The plaintiff later withdrew his motion seeking a redefinition and certification of the class and instead maintained that the class as certified by the court in its December 19 order was adequate. Bell filed an objection to this certification of the class.

On February 13, 1980, the circuit court ordered that the defendants be permanently enjoined from collecting that portion of the message tax in excess of the authorized rate; that the class be in effect recertified, thereby overruling Bell’s objection; and that all parties comply with pending discovery orders. The court also appointed a trustee and an attorney for the trustee in order to administer the special protest fund. Bell was ordered to turn over to the trustee all overcharges collected under the city’s message tax after July 18, 1967, that had not been previously deposited by the city with the trustee, including Bell’s excess collection charges for accounting costs. This order adhered to the definition of the plaintiff class, which included all customers of Bell residing in Chicago and making utility payments since July 18, 1967. The court reserved ruling with respect to the appointment of an accounting firm for the purpose of conducting an audit and also with respect to the certification of subclasses involving the 105 municipalities and four other telephone companies joined as parties defendant. Upon denial of Bell’s motion to modify this order, both Bell and the city filed notices of interlocutory appeal (73 Ill. 2d R. 307(a)). Subsequent to these filings the plaintiff and both defendants filed motions for direct appeal to this court which we granted. (73 Ill. 2d R. 302(b).) Briefs amici curiae have been filed in behalf of several utilities and municipalities.

The defendants first argue that the court’s order allowing what they claim is “retroactive” relief from July 18, 1967, should be reversed. This argument is premised upon the size of the class as defined and certified by the court in its December 19 order and later in its order of February 13. The plaintiff class in these orders was defined as “[a] 11 customers of Illinois Bell Telephone Company located or residing, in the City of Chicago, who during the period of ten years next before filing of the complaint herein on July 18, 1977, have paid to Bell a charge for the City’s message tax in excess of the 5% rate authorized by law and who have accordingly been overcharged in the collection charge made by Bell during said period.”

The defendants argue that between December of 1955 and July of 1977, when Getto filed suit, all utility payments to Bell were made without protest and that thereby any recovery is barred under what is described as the voluntary-payment doctrine. As a result, it is contended that any recovery should be limited to the excess taxes paid by the plaintiff after the class action was filed in 1977.

The plaintiff, in response to this, first asserts that the issue of class certification was decided in Getto I and therefore is res judicata. In the alternative, he contends that the voluntary-payment doctrine does not apply since he did not have knowledge of all the necessary facts to support a finding that these prior payments were voluntary. Further he says that such payments were made under compulsion because of the threat of termination of his phone service, which, he argues, would also prevent application of the voluntary-tax-payment doctrine.

We first consider the plaintiff’s claim that the question pertaining to the period for the recovery of refunds, that is, the period between July 18, 1967, and July 18, 1977, is res judicata. A review of the arguments made in Getto I and the opinion show that while the maintenance of the suit as a class action was contested in the trial court, that issue was neither raised nor decided on the appeal. Contrary to the plaintiffs position, that part of Getto I which held that the class had standing to file suit did not also affirm the trial court’s certification of the class. The interlocutory appeal filed by the defendants challenged only the issuance of the preliminary injunction, and involved the questions of standing and the trial court’s authority to exercise jurisdiction in the dispute. In discussing these issues as well as whether the defendants had correctly defined the term “gross receipts,” this court did not have to consider the question of whether the class was properly defined and certified.

We are not convinced by the plaintiff’s argument that this issue should have been raised on appeal in Getto I and that by their failure to do so the defendants are barred from raising the question of retroactive claims for refunds in this appeal. The preliminary injunction issued by the court granted prospective relief only and did not require, as did the permanent injunction issued after Getto I, that excess payments since July 18, 1967, be deposited by Bell in the protest fund. Since the preliminary injunction only prohibited, prospectively, excessive collections by the defendants and did not involve the right to file the retroactive claims as described, the defendants were, of course, not obligated to raise that question in their first interlocutory appeal under Rule 307(a).

Too, the defendants were not entitled to challenge the circuit court’s certification of the class when they filed their interlocutory appeal in Getto I. Our procedural rules affecting class action suits and interlocutory appeals are patterned on comparable Federal rules. Section 57.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.3), which closely follows Rule 23(c)(1) of the Federal Rules of Civil Procedure, provides that “[a] s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it may be maintained and describe those whom the court finds to be members of the class. ***” This section also states, however, that “ [t] his order may be conditional and may be amended before a decision on the merits.” Federal courts, in interpreting procedural rules for class action and interlocutory appeals, have held that a party is not entitled to take an interlocutory appeal from a trial court order defining and certifying the class or from a determination as to whether the suit may or may not proceed as a class aciton since either order is always subject to amendment or modification before a final judgment is entered. See Gardner v. Westinghouse Broadcasting Co. (1978), 437 U.S. 478, 57 L. Ed. 2d 364, 98 S. Ct. 2451, and cases cited therein. See also Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583, 590.

Similarly, there are decisions by Federal courts that since an order granting or refusing a plaintiff’s request to proceed as a class action does not terminate the litigation and has no impact upon the merits of the case, it may not be appealed as a final judgment. See Coopers & Lybrand v. Livesay (1978), 437 U.S. 463, 57 L. Ed. 2d 351, 98 S. Ct. 2454, and cases cited therein.

As of this stage of the action here, no final order or determination of liability has been made. The proceeding is at the discovery stage. As further evidence is presented, the court, in its discretion, may decide to amend or revise its determination of the class. Given the present posture of the case, the defendants would not have been entitled to challenge the trial court’s definition and certification of the class in their interlocutory appeal under Rule 307(a) in Getto I and therefore the determination of the issue in this appeal is not barred under the doctrine of res judicata.

We turn now to the defendants’ claim that payment of retroactive claims would be barred by the voluntary-tax-payment doctrine. This court has held that in the absence of a statute which allows recovery for the payment of those taxes or charges which have been improperly assessed by a municipality or utility, a taxpayer or customer may not recover taxes or fees which have been paid voluntarily. (Ross v. City of Geneva (1978), 71 Ill. 2d 27; Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336; Hagerty v. General Motors Corp. (1974), 59 Ill. 2d 52; Illinois Glass Co. v. Chicago Telephone Co. (1908), 234 Ill. 535.) Thus, a party may not recover taxes or charges voluntarily paid unless recovery is authorized by statute. In Illinois Glass Co. v. Chicago Telephone Co. (1908), 234 Ill. 535, 541, the voluntary-payment doctrine was rather fully stated:

“It has been a universally recognized rule that money voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal. It has been deemed necessary not only to show that the claim asserted was unlawful, but also that the payment was not voluntary; that there was some necessity which amounted to compulsion, and payment was made under the influence of such compulsion.”

As has been stated, the defendants argue that since the plaintiff paid his utility bill without any protest until suit was filed in July of 1977, he may not recover funds for any overcharges paid prior to that time. Though payment under protest is the typical means by which a taxpayer signifies his contention that a tax or charge was improper, the absence of such a protest does not, without more, require application of the voluntary-payment doctrine. It must also be shown that the taxpayer plaintiff had knowledge of the facts upon which to frame a protest and also that the payments were not made under duress or compulsion.

The defendants, citing Illinois Glass, contend that the plaintiff is charged with knowledge of the message tax ordinance as well as those statutory provisions which allow a utility to pass along this tax to its subscribers by way of an increased charge for service. Bell further points out that this charge appeared separately on each utility bill to subscribers as required under the statute (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 36(a)) and thus no attempt was made to impose the fee upon unknowing subscribers.

Getto’s phone bills, which were attached to his complaint, show three separate charges near the bottom of the bill for “U.S. Tax,” “State,” and “City.” The State and city charges are each followed by an asterisk, which, in the lefthand margin of the bill, is explained as “Additional charges due to State and City Taxes.” We do not view this purported disclosure of “facts” to be sufficient to warrant application of the voluntary-payment doctrine as the defendants argue, so as to preclude recovery for the earlier years in question.

Though the charge designated “City” does appear separately on the subscriber’s bill, it is not stated which municipal tax is involved, or what portion of the bill is being taxed or that the charge includes a 3% charge on the message tax for costs of accounting. Too, with the information provided by his bill, the subscriber has no way of ascertaining that the message tax, which is passed on to him by Bell, was calculated by Bell by applying the 5% tax to the utility’s gross receipts, which not only included customer billings, but other customer receipts and the message tax itself. This method of calculation was struck down as “erroneous” in Getto I.

The decision in Illinois Glass upon which the defendants importantly rely, rested on clearly distinguishable circumstances. There the Chicago Telephone Company was permitted by an ordinance adopted in 1889 to operate telephone lines for a period of 20 years within the corporate boundaries of the city of Chicago. The agreement was conditioned upon the company’s agreeing not to increase the rates beyond those set out in a rate schedule filed with the city. The rate established for a business phone was $125 per year. The plaintiff entered into a contract with the company for business phone service at the prescribed rate. After several years of acceptable service, technical and mechanical difficulties arose “which made it difficult to carry on a conversation.” (Illinois Glass Co. v. Chicago Telephone Co. (1908), 234 Ill. 535, 539.) The phone company investigated the difficulty and proposed that it could and would provide improved service but at an additional charge of $50 a year. That would increase the rate to $175 per year. Illinois Glass, after negotiations, finally agreed to the higher rate and continued to pay it for the next five years. It then brought suit to recover the excess fees paid to the phone company. The court, observing that the contract for phone service was entered into by the plaintiff “deliberately, after negotiations and with full knowledge of all the facts and conditions ***” (234 Ill. 435, 540), held that the voluntary-payment doctrine was applicable.

Here, the utility rates and charges were established by the Illinois Commerce Commission and the city of Chicago, and not through negotiations between Bell and its subscribers. We do not consider that subscribers were here provided with sufficient information or “facts” to determine whether the method of taxation was proper.

Even were it to be held that the plaintiff had sufficient knowledge of all the facts to permit a conclusion that all payments prior to 1977 were voluntary, we judge that the implicit and real threat that phone service would be shut off for nonpayment of charges amounted to compulsion that would forbid application of the voluntary-payment doctrine. This question was addressed in Ross v. City of Geneva (1978), 71 Ill. 2d 27. There, the city of Geneva, which operated a publicly owned utility, levied a 10% surcharge on each subscriber’s electrical bill to fund the acquiring and maintaining of parking facilities. Though the ordinance authorizing the addition of the surcharge was enacted in 1962, the charge did not appear separately on utility bills until June of 1973 and then only as a miscellaneous charge. The plaintiff filed a suit in July of that year claiming that the surcharge was illegal. The record showed that the city had a policy of terminating the electrical service of subscribers who failed to pay their bills and that there was no administrative provision for payment under protest. In the course of holding that the city was without authority to levy the surcharge, the court reviewed previous decisions which recognized that payments made under protest to avoid “disastrous effects to business” that would result from the termination of an important service or the revocation of a license to conduct business were involuntary. This court held that u[c] on-fronted with the choice of payment of the surcharge or termination of service, plaintiff, in making the payment, acted with prudence and is not barred [by the voluntary-payment doctrine] from recovery of the sums paid.” (71 Ill. 2d 27, 33-34.) It was held that the plaintiff could bring a class action to recover all sums paid over the 13-year period involved.

The factor of compulsion and its place in the voluntary-payment doctrine were discussed in Illinois Glass. It was observed by the court in 1908:

“The ancient doctrine of duress of person, and later of goods, has been relaxed, and extended so as to admit of compulsion of business and circumstances, and perhaps a telephone corporation having a system in general operation and connected with customers and other business houses might reasonably influence a business house to make an unwilling payment of an amount illegally demanded, which would make the payment compulsory. The telephone has become an instrument of such necessity in business houses that a denial of its advantages would amount to a destruction of the business.” 234 Ill. 535, 541.

The defendants reply by arguing that under General Order 197, section 301(2) of the Illinois Commerce Commission, a privately owned public utility may not interrupt or terminate a subscriber’s phone service when the customer has a legitimate dispute as to charges for service. Under this rule, in order to avoid a termination of service, it is said by Bell that the complainant need only pay the undisputed portion of the bill, and future bills, and seek to resolve his dispute with the utility. If the parties cannot resolve the dispute, the customer can then file a complaint with the Commission. Relying upon this general order, the defendants argue that the plaintiffs phone service could not have been terminated and therefore the earlier utility service payments cannot be called involuntary. We do not consider the contention to be valid. That portion of the message tax in excess of the 5% authorized rate which was challenged in Getto I was sanctioned and approved by the Commission itself. This was one ground for this court’s holding that it was not necessary for the plaintiff to exhaust his administrative remedies. Any attempt by the plaintiff to follow the procedural requirements in General Order 197 would obviously have been pointless and he would have been exposed to possible termination of service. We judge that the plaintiff is not barred under the voluntary-payment doctrine.

Bell raises an additional argument — that the plaintiffs action is barred under the doctrine of laches. As we consider that the plaintiff did not have knowledge of all the facts necessary to make a payment that was voluntary, laches is not applicable. See Ross v. City of Geneva (1978), 71 Ill. 2d 27, 34, and cases cited therein.

The defendants next argue that the supervision of refunds for excess utility rates or charges comes within the exclusive jurisdiction of the Illinois Commerce Commission. As a result, they contend the trial court’s appointment of a special trustee to supervise and administer the protest fund was erroneous and should be set aside. A resembling argument was made in Getto I in connection with the defendants’ position that a court of equity could not exercise jurisdiction over any dispute concerning a request for refunds arising under sections 36(a) and 76 of the Public Utilities Act (Ill. Rev. Stat. 1977, ch. Ill 2/3, pars. 36(a), 76).

In Getto I the court stated that sections 36(a) and 76 of the Public Utilities Act did not provide an adequate remedy to the plaintiff since the Commission, under these provisions, had no authority to enjoin the continued imposition and collection of the illegal portion of the message tax. The court said that “[u]nder these circumstances *** the circuit court properly exercised jurisdiction in this cause.” (77 Ill. 2d 346, 357.) Though acknowledging that the Commission had no power to enjoin imposition of the tax, the defendants contend now that since this court in Getto I made it clear how the tax should be computed, the Commission may administer the refunding process.

As stated in Getto /, we do not consider that these sections of the Public Utilities Act provide an appropriate and adequate remedial procedure for the plaintiff. Nor are these sections properly applicable at this juncture of the proceeding. Under section 36(a) of the Act, examination of the question of whether rates or charges imposed by a utility are excessive may be had only when the utility files a supplemental schedule with the Commission. Such a schedule declares the new charges as a result of a utility’s decision, under section 36(a), to impose an additional charge upon its subscribers to compensate for the tax levied upon the utility by a municipality under the message tax. As of this stage of the proceeding, Bell has filed a new supplemental schedule reflecting our holding in Getto I that the manner in which the message tax was computed was erroneous. This schedule has been approved by the Commission. No challenge to this revised schedule has been made by the plaintiff, and as it now reflects the rates and fees which may be legally charged, section 36(a) no longer provides a statutory means to obtain a refund.

The remedy possible under section 76 would not be adequate. Under it, the Commission’s authority to determine whether excessive rates or charges have been imposed arises from the filing of a complaint. The complaint in this proceeding, as determined in Getto I, was properly filed with the circuit court and not with the Commission. Also, this section is a limiting one, providing that “[a] 11 complaints for the recovery of damages shall be filed with the Commission within one year from the time the produce, commodity or service as to which the complaint is made was furnished or performed ***.” Ill. Rev. Stat. 1977, ch. Ill 2/3, par. 76.

Bell also argues that the circuit court erred in ordering Bell to turn over to the trustee all overcharges collected by it since July 18, 1967, which have not already been deposited by the city of Chicago in the special protest fund created by order of the circuit court. Bell argues that, since it has already remitted those tax monies to the city, this court should order that the city and not Bell is responsible for all excess payments, including those made beginning in July 1967. That obviously would be improper. No determination whatever has been made as to liability for overcharges. Since the plaintiffs paid excess charges directly to Bell, we consider that the court did not abuse discretion in ordering Bell to deposit the amounts of overcharges with the trustee, excepting those excess charges already deposited with the trustee by the city pursuant to the court’s order. This order did not represent any determination of liability by the circuit court.

For the reasons given, the orders of the circuit court of Cook County considered herein are affirmed.

Orders affirmed.

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

MR. JUSTICE UNDERWOOD,

dissenting:

Although the court acknowledged in Getto I the “complementary and interlocking nature” (Getto v. City of Chicago (1979), 77 Ill. 2d 346, 355) of the municipal message tax and the plaintiff’s offsetting payments to Bell pursuant to section 36(a) of the Public Utilities Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 36(a)), the majority is here led to what seems to me the incongruous result of requiring Bell to pay over to the trustee money which was paid to it without objection between July 18, 1967, and July 18, 1977, despite the fact that this money was remitted to the city in the form of message tax at the time it was originally collected. This result is accomplished by ignoring Adams v. Jewel Companies (1976), 63 Ill. 2d 336, Hagerty v. General Motors Corp. (1974), 59 Ill. 2d 52, and the cases there cited. Those cases indicate that, in the case of similarly related use tax and retailers’ occupation tax, one who voluntarily pays excessive tax to a retailer who, in turn, remits the corresponding tax to the taxing body, cannot, in the absence of statute, later recover the excessive tax.

While paying lip service, the majority today effectively abandons the voluntary-payment doctrine stated in Illinois Glass Co. v. Chicago Telephone Co. (1908), 234 Ill. 535, 541:

“It has been a universally recognized rule that money voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal. It has been deemed necessary not only to show that the claim asserted was unlawful, but also that the payment was not voluntary; that there was some necessity which amounted to compulsion, and payment was made under the influence of such complusion.”

(Ross v. City of Geneva (1978), 71 Ill. 2d 27; Adams v. Jewel Companies (1976), 63 Ill. 2d 336; Hagerty v. General Motors Corp. (1974), 59 Ill. 2d 52; Illinois Glass Co. v. Chicago Telephone Co. (1908), 234 Ill. 535.) First, failure to protest payments voluntarily made during the 10-year period is excused on the ground of lack of knowledge that the amounts had been erroneously computed even though no inquiry had been made and the contents of public records would have disclosed the method of computing the overcharge. Even Ross v. City of Geneva (1978), 71 Ill. 2d 27, on which the majority relies, is distinguishable, since there the surcharge complained of was protested as soon as it was shown on the bill as a miscellaneous charge. In the present case payments were made without protest during the 10-year period, despite the fact that the charge was shown on customer bills under the heading “City,” with a footnote explaining that it was an additional charge due to city taxes. Second, and more importantly, the majority relies on the possibility that the plaintiff labored under an unrealistic fear of termination of service as sufficient to show that the payments were made under compulsion. The fact is, however, that such termination would have been directly contradictory to the orders of the Illinois Commerce Commission prohibiting termination where liability is disputed. Again, Ross is distinguishable, for there the defendant had an established policy of terminating the service of those who refused to pay the challenged surcharge. Fears which the majority imputes to the plaintiff are made no more reasonable by the fact that the commission staff was involved in devising the incorrect method of computing the charge, especially since there is no evidence that plaintiff was ever aware of that involvement. (Getto v. City of Chicago (1979), 77 Ill. 2d 346, 360-63) (Underwood, J., dissenting).) If unreasonable beliefs can provide sufficient compulsion to excuse otherwise voluntary payments, the voluntary-payment doctrine no longer exists.

The doctrine of laches (Pyle v. Ferrell (1958), 12 Ill. 2d 547) would provide a second reason to deny the plaintiff relief concerning amounts collected during the period from July 18, 1967, to July 18, 1977. The ordinance imposing the message tax was enacted in 1955, as were provisions corresponding to section 36(a) of the Public Utilities Act. Although any recovery will apparently be limited to the 10-year period preceding filing of the complaint in this case, the erroneous computations of taxes and collection fees had been performed each month for 22 years before plaintiff filed this class action, and the collected taxes were presumably paid to the city by Bell during each of those years. If retroactive recovery is permitted there will be obvious and substantial financial prejudice to the city and the utility, which long ago expended the funds resulting from the now challenged computations.

Having ignored the doctrine of laches, and having decided that the voluntary-payment doctrine did not preclude recovery of sums paid prior to July 18, 1977, the majority approves the circuit court’s order that Bell deposit with the trustee amounts collected during that period, less whatever amounts had been deposited by the city. Similar action by the appellate court in Hagerty was condemned by this court:

“We do not approve the appellate court’s statement that:
‘If defendant collected excess taxes from its customers, it has received and has retained the excess money to which it is not entitled. The fact that defendant may have paid a similar amount of money to the State is of no importance when considering the rights and obligations between defendant and its customers. Any money defendant may have paid to the State was in discharge of its own obligations and does not affect the rights of plaintiff and the class. When defendant retained the tax collected from plaintiff, it was unjustly enriched to the extent to which the tax collected exceeded the amount of tax that it could rightfully collect.’ 14 Ill. App. 3d at 43. This reasoning misapprehends the interrelation between the use tax and the retailers’ occupation tax. (See Turner v. Wright (1957), 11 Ill. 2d 161.) If GM erroneously paid a retailers’ occupation tax to the State on the same transaction in which it erroneously collected a use tax from the plaintiff, it was not enriched at all, justly or unjustly. If there was unjust enrichment, it was the State that was enriched.” Hagerty v. General Motors Corp. (1974), 59 Ill. 2d 52, 60.

To date, as the majority acknowledges, “No determination whatever has been made as to Hability for overcharges.” (86 Ill. 2d at 55.) Bell has admittedly paid to the city all of the collected taxes, retaining only the collection charge provided by section 36 to compensate it for its services in collecting the tax. Under the majority’s approach to this case, Bell can rationally be required to pay to the trustee of the fund that portion of its collection charge which had been improperly computed. There is, however, in my judgment, no defensible basis upon which BeH may also be required to pay the trustee the improperly computed amounts of tax which it had already paid to the city during the intervening 10 years. If those funds are to be paid into the fund at all, payment should be required from the city to which it was paid. The ordinance required Bell to pay the collected taxes to the city. It did so for 22 years. Now, it is for the first time claimed that the tax was incorrectly computed, and that both the amount of the city’s tax and the amount of Bell’s collection fee are higher than authorized. Requiring Bell to pay into the protest fund the disputed portion of its retained fees is one thing, but compelling it, instead of the city to which the taxes have been paid, to pay into the fund the amounts of tax previously remitted to the city during the 10-year interval, is, it seems to me, totally unjustified. That action may well pose substantial due process problems in addition to being directly contrary to Adams, Hagerty, and the cases there cited.

Whether the utility’s future customers or the city’s taxpayers, or both, bear the burden of the 10-year refund which appears to be contemplated by the trial court and a majority of my colleagues depends, of course, on whether the majority will permit Bell to eventually recover its duplicate payment from the city, a question the majority refuses to decide now. This anomalous situation typifies the problems resulting when retroactive recovery is permitted of taxes paid without protest for an entire decade.

I would limit recovery here to post-complaint-filing payments of the overcharges.

MR. JUSTICE RYAN joins in this dissent.


author: MR. JUSTICE WARD

text:
    (No. 53535.
    EASTMAN KODAK COMPANY, Appellant, v. THE FAIR EMPLOYMENT PRACTICES COMMISSION, Appellee.

      Opinion filed June 26, 1981.

    Rehearing denied October 19, 1981.

      David M. Stahl, Diane Dillon, and John E. Cipriano, of Isham, Lincoln & Beale, of Chicago, for appellant.
    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield (Moshe Jacobius, Assistant Attorney General, of Chicago, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

This appeal involves a challenge by the Eastman Kodak Company to a decision of the Fair Employment Practices Commission (Commission) which struck Kodak’s name from the list of eligible bidders for public contracts with the State of Illinois. The Commission’s decision was based upon the claimed failure of Kodak to submit an acceptable affirmative action program to rectify what the Commission considered an “underutilization” of minority employees at Kodak’s Oak Brook facility. Kodak filed an appeal under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.) in the circuit court of Du Page County and the court reversed the decision of the Commission. The appellate court in turn reversed the circuit court judgment (83 Ill. App. 3d 215), and we granted Kodak’s petition for leave to appeal (73 Ill. 2d R. 315(a)).

As a means of carrying out the declared legislative intention under the Fair Employment Practices Act (Ill. Rev. Stat. 1975), ch. 48, par. 851 et seq.) to provide equal employment opportunities to all residents of the State and to protect them from discrimination on the basis of “race, color, religion, sex, national origin, ancestry or unfavorable discharge from military service, or physical or mental handicap unrelated to ability” (Ill. Rev. Stat. 1975, ch. 48, par. 851), section 4 of the Act imposes certain requirements upon individuals or companies who enter into public contracts with State or local governmental bodies. All contractors, subcontractors, and labor unions, as a precondition to a contract, must agree that they “shall not commit an unfair employment practice in this State as defined in this Act [see Ill. Rev. Stat. 1975, ch. 48, par. 853], and shall take affirmative action to insure that no unfair employment practice is committed.” (Ill. Rev. Stat. 1975, ch. 48, par. 854.) Section 4A empowers the Commission to “issue rules and regulations, conduct investigations, hold hearings and issue orders based thereon for the purposes of enforcement and administration of Section 4 of this Act and rules and regulations adopted hereunder.” Ill. Rev. Stat. 1975, ch. 48, par. 854A.

Under this grant of legislative authority to promulgate rules and regulations to carry out the legislative intent of the Act, the Commission requires a contractor or subcontractor to file a prequalification report with the Commission in order to establish its eligibility for bidding on public contracts. (Rules and Regulations for Public Contracts Prescribed by the Illinois Fair Employment Practices Commission, Art. V, sec. 5.1.) In addition to representing that it will not discriminate on the basis of “race, color, religion, sex, national origin or ancestry,” the employer must also ascertain whether minorities and women are “underutilized” within his workforce. (Art. Ill, sec. 3.1(1) (Nov. 30, 1972).) “Underutilization,” with respect to minorities, is defined as “having fewer minority workers in a particular job classification than would reasonably be expected by their availability. The availability of minority workers for any job classification shall be determined by the minority population percentages of the area(s) from which the contractor or subcontractor may reasonably recruit ***.” (Art. IV, sec. 4.2(a) (Nov. 30, 1972).) If the Commission determines from a review of the applicant’s prequalification report that it is underutilizing the available minority work force, the employer must submit an acceptable affirmative action program. This program must set out the proposed area within which the applicant will actively recruit minority employees, and also the goals, programs, and timetables related to the employer’s attempt to increase the percentage of minorities in its work force to a level comparable to the percentage of minorities currently employed within a reasonable recruitment area. If the plan is found acceptable so as to correct the underutilization, the applicant’s name will be placed on the list of eligible bidders for public contracts with the State. If the applicant’s affirmative action program is found to be unacceptable, the company may be barred from bidding on the contracts on the grounds of noncompliance. Art. Ill, sec. 3.1; art. V, sec. 5.1(c) (Nov. 30, 1972).

In September of 1974, Kodak filed its prequalification report with the Commission in order to maintain its bidding-eligibility status. The Commission, upon reviewing the statistical information provided by Kodak, found that it was employing minorities to the extent of 11.9% at its Oak Brook plant. Comparing this figure to the 23% minority work force currently employed within the Chicago Standard Metropolitan Statistical Area (SMSA), which is composed of Cook, Du Page, Kane, Lake, McHenry and Will counties, the Commission determined that Kodak was underutilizing minority employees. Kodak did not contest this finding. Instead, it submitted an affirmative action program according to rules and regulations of the Commission. (Art. V, sec. 5.1(c).) The program included a proposed recruitment area which consisted of all of Du Page County and that part of Cook County, excluding the city of Chicago, which extended east to Harlem Avenue, north to Devon Avenue and south to 95th Street. Of the total percentage of estimated employees within this area, minority employees comprised 4.3%. Kodak’s facility was located seven miles from the proposed area’s eastern boundary and 17 miles from the western boundary. As stated, no part of the city of Chicago was included in Kodak’s recruitment area.

An examination of Kodak’s employment records for the first half of 1975 with respect to employee residences, which were grouped on the basis of zip codes, gender, and race, and of Kodak’s employment-application records disclosed that 47% of its employees resided outside its proposed recruitment area and that 19% of its total number of employees lived in Chicago. The Commission also found that 40% of Kodak’s applicants lived outside the recruitment area; that for the same period of time, the first half of 1975, 26% of these applicants were from minority groups and that 13% of the total of applicants resided in Chicago. On the basis of these findings, the Commission concluded that Kodak’s proposed recruitment area was unreasonable considering the significant percentage of employees and applicants who lived outside this area.

The Commission on October 15, 1975, issued an order of noncompliance based on what it termed Kodak’s failure to submit an acceptable affirmative action program. The program was unacceptable, the Commission decided, because of an unreasonable recruitment area and because of Kodak’s stated goal to recruit and hire minority employees at a rate of only 5%.

Under the Commission’s rules, Kodak requested a public hearing before an administrative hearing officer. At this proceeding, the Commission, in support of its position that Kodak’s proposed recruitment area was unreasonable, introduced into evidence various maps outlining the Chicago SMSA and the area submitted as Kodak’s recruitment area; that portion of the 1970 SMSA census figures showing the relation of the black and Spanish populations to the population as a whole; an applicant flow chart and employment chart prepared by Kodak when it filed its prequalification report; and, finally, a map of Chicago and suburbs which indicated the residences of Kodak’s current employees and the applicants for employment.

Kodak, in the proceeding before the hearing officer, did not contest the accuracy of the employment statistics or the evidence presented by the Commission. Instead, it called two expert witnesses. The first, Byrne Underhill, is Kodak’s national corporate coordinator for equal employment programs. He described Kodak’s local efforts in encouraging applications and referrals of prospective minority employees through various urban and suburban minority organizations. He said that while Kodak has been particularly successful with such organizations in the May-wood area, it did not have favorable results with the Chicago Urban League and stated that Kodak no longer works with the league in trying to attract minority employees. It appeared that this was one factor in Kodak’s decision not to include the city of Chicago in drawing its proposed recruitment area. Underhill was not able to state, however, what number or percentage of its minority employees or applicants it secured through the various minority organizations.

He further testified that the turnover rate of the minority work force at the Oak Brook facility was only 3% in 1975 and that 33% of its new hirees in that year were minorities. In response to a question as to why close to 2 0% of its employees are willing to travel from Chicago to Oak Brook, Underhill offered as explanation the “fact” that a significant number of these individuals had worked with Kodak in Chicago before it relocated in Oak Brook and did not wish to forfeit employment benefits which had accrued. The record reveals, however, that only 6 of the 28 affected employees decided to relocate. Approximately 100 of Kodak’s employees in 1975 resided in Chicago.

When asked why the city of Chicago was not included in Kodak’s recruitment area, the witness cited the lack of recruitment success through the Chicago Urban League and also expressed the opinion that to actively seek prospective minority employees in Chicago as well as in other areas in the SMSA would dilute their overall effectiveness in recruiting, particularly in the Maywood area. Underhill also raised the point that of Kodak’s 528 employees, which, excluding salespersons, are subject to a Federal affirmative action program, 350 were locally recruited, whereas the remaining number of employees had been the subject of a national search. The significance of this employment statistic is Kodak’s argument that of these local employees, 18.2% were minorities who served principally in clerical and service-oriented positions and who in 1975 were paid entry-level salaries of between $150 and $175 per week. It was Kodak’s position that only the 350 locally recruited employees should be included in any statistical employment analysis of its hiring practices. The apparent implication was that nationally recruited employees are more apt to live farther from the Oak Brook facility than its locally recruited employees do. Kodak did not provide, however, any evidence as to where the employees hired as a result of national recruiting actually resided.

Melvin W. Reder, a professor of urban economics at the University of Chicago, also testified for Kodak. The purpose of Professor Reder’s testimony, supported to some extent by SMSA statistics from the Chicago area, was to establish that the greater the distance a jobsite is from an employee’s residence, the less likely that employee is willing to travel to the site of employment or be able to arrange to travel to work in a car pool. This position was then applied to Kodak’s location and its distance from Chicago in order to describe the attendant “problems” of traveling to and from Chicago to the Oak Brook plant.

To support the recruitment area plan it had proposed, Kodak also introduced, at the administrative hearing, a study compiled by Laplois Ashford, executive director of the Chicago Urban League, and one prepared by the Northwestern Indiana Regional Planning Commission. Both reports examined travel patterns by car and mass transportation, and the first was directed toward the impact upon members of minorities who must travel to the suburbs for employment.

Kodak first contends that the rules and regulations promulgated by the Commission exceeded its statutory grant of authority. Specifically, Kodak claims that the Commission may take “affirmative action” only to insure that no unfair employment practice is committed against an individual. The Commission cannot, it argues, require a company to submit an affirmative action program to correct what is claimed to be an underutilization of minorities as a class.

We have described the legislative intent underlying the Fair Employment Practices Act and the Commission’s role in enforcing the policy of insuring that no party to a public contract with the State or other public body is guilty of what the Act proscribes as an unfair employment practice (Ill. Rev. Stat. 1975, ch. 48, par. 851 et seq.). While an agency may not issue regulations which exceed or alter its statutory power [Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151) or which are contrary to the legislative purpose and intent of the statute (People ex rel. Illinois Highway Transportation Co. v. Biggs (1949), 402 Ill. 401, 409), an administrative agency has authority to regulate and execute the provisions of the statute and to carry out the powers conferred upon it. (See Hill v. Relyea (1966), 34 Ill. 2d 552, 555; Owens v. Green (1948), 400 Ill. 380, 398.) Further, the promulgated rules and regulations will be presumed to be valid and to have the force and effect of law. Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 58, citing DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 485; 2 Am. Jur. 2d Administrative Law sec. 298 (1962); People ex rel. Colletti v. Pate (1964), 31 Ill. 2d 354, 359.

Applying this to the case here, there is nothing to support the claim that the Commission has exceeded its statutory authority or that the rules and regulations adopted by it to enforce and execute legislative policy with respect to public contracts are in “clear contravention of the spirit and letter of the act” as to make them unlawful. [Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151.) Specifically, we find no merit to Kodak’s claim that the term “affirmative action,” as it is used in section 4 of the Act, is limited in its application to individual acts of discrimination in employment. Section 4 requires that “ [e] very contract to which the State, any of its political subdivisions or any municipal corporation is a party shall be conditioned upon the requirement that the supplier of materials or services or the contractor and his subcontractors, and all labor organizations *** shall not commit an unfair employment practice in the State *** and shall take affirmative action to insure that no unfair employment practice is committed. ” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 48, par. 854.) Though the statutory definition of an “unfair employment practice” proscribed under the Act is directed to acts of discrimination against an individual (Ill. Rev. Stat. 1975, ch. 48, par. 853), Kodak’s argument suggests that such practices are never directed towards a class of individuals. Under the construction Kodak urges for “affirmative action” the Commission would be barred from adopting rules which would prohibit discriminatory actions or conduct against minority groups as a precondition to bidding on public contracts. Certainly the legislature never intended to withhold from the condemnation of the Act practices directed against a class or classes of individuals because of their race, origin, sex, color, or religion. Kodak cites no authority for what would be an absurdly narrow construction of “affirmative action.” Where “affirmative action” has been used in the context involved here, it has been interpreted in both Federal and State decisions to refer to programs with goals and timetables and other means designed to secure and guarantee equal employment opportunities to members of minority groups. See, e.g., Fullilove v. Klutznick (1980), 448 U.S. 448, 65 L. Ed. 2d 902, 100 S. Ct. 2758; City of Minneapolis v. Richardson (1976), 307 Minn. 80, 85, 239 N.W.2d 197, 205; 41 C.F.R. sec. 60-1.40(a) (1980); Nash, Affirmative Action Under Executive Order 11,246, 46 N.Y.U. L. Rev. 225, 233 (1971).

This court, in a recent decision, approved of an affirmative action plan adopted by the Public Building Commission which awarded a public contract to the Del E. Webb Corporation to construct the New Loop and City Wide College in Chicago on the basis of a canvassing formula which awarded certain “credits” to bidders based upon the number of labor hours contributed by minority employees. In S. N. Nielsen Co. v. Public Building Com. (1980), 81 Ill. 2d 290, the Webb Corporation had been awarded the contract through application of this formula despite the fact that it had not submitted the lowest bid. The court rejected the contention that the Commission had exceeded its legislative authority in applying the canvassing formula and held that under section 4 of the Fair Employment Practices Act (Ill. Rev. Stat. 1975, ch. 48, par. 854) the Public Budding Commission was “authorized to implement affirmative action requirements in the letting of its contracts ‘to insure’ that no discrimination is practiced against minorities in employment decisions.” (81 Ill. 2d 290, 297, citing John N. Brunsfeld & Sons, Inc. v. Board of Education (1977), 54 Ill. App. 3d 119, 123-25, and cases cited therein.) The Commission here did not exceed its authority in requiring Kodak to submit a reasonable recruitment area and an affirmative action program following a determination by the Commission that Kodak was underutilizing minorities at its Oak Brook facility.

Kodak contends, too, that the effect of the Commission’s rules is to force Kodak to engage in impermissible preferential hiring. Though the Commission concluded that Kodak was underutilizing minorities, a charge which Kodak did not contest, by comparing the 11.9% minorites at its Oak Brook facility to the 23% minority work force in the Chicago SMSA, this does not mean, as Kodak claims, that it must now hire a sufficient number of minority employees to reach the 23% figure. As the matter stands, Kodak has been stricken from the list of eligible bidders because it failed to submit a reasonable recruitment area. The Commission has not forced Kodak to adopt the Chicago SMSA as the only area acceptable as reasonable; nor has it compelled or ordered Kodak to hire minority employees. As a result, those questions raised by Kodak with respect to impermissible quotas and claimed violations of title VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000a et seq. (1976)) are not before us.

Kodak next contends that the administrative hearing officer erred in stating that it bore the ultimate burden of persuasion, and, as a result, it had to “produce evidence to persuade *** [her] and ultimately the Commission itself, that its own recruitment area [was] more reasonable than the Commission’s designation of the recruitment area.” Relying upon section 8.01 of the Act, Kodak maintains that the burden properly lies with the Commission to prove the elements of its complaint by “a preponderance of the evidence.” (Ill. Rev. Stat. 1975, ch. 48, par. 858.01.) Arguing that the application of an incorrect standard of proof constituted reversible error, Kodak says that it should be reinstated on the role of eligible bidders for public contracts with the State.

This case, however, does not involve a complaint filed by the Commission against Kodak. Section 8.01 of the Act therefore is not to be applied to determine which party is to bear the burden of proof. When Kodak filed its prequalification report, it was applying for the privilege to bid on public contracts. This was not a right accorded to all companies or individuals. As has been described, one must meet specified requirements before it is placed on the list of eligible bidders with the State. In essence, when Kodak filed its report it was taking the position that it met these requirements. The Commission instead determined that it was underutilizing minorities. Kodak, under the Commission’s rules and regulations, was then required to file an acceptable affirmative action program which included the submission of a reasonable recruitment area, goals, and timetables. This court has held that “[t]he - burden of proof is always on the party having the affirmative of a proposition and it abides with him until a final determination of the proposition.” (Bell v. School District No. 84 (1950), 407 Ill. 406, 416. See also People ex rel. Rusch v. Fusco (1947), 397 Ill. 468; General Foods Corp. v. Hall (1976), 39 Ill. App. 3d 147; Williams v. Franks (1973), 11 Ill. App. 3d 937.) It is true that those decisions did not involve administrative proceedings, but the same principle has been held to apply where a party has applied to an administrative agency for a particular privilege or benefit. (See, e.g., Gourley v. Board of Trustees (S.D. (S.D. 1980), 289 N.W.2d 251 (disability benefits); Energy Regulatory Com. v. Kentucky Power Co. (Ky. App. 1980), 605 S.W.2d 46 (application to purchase additional generating capacity); Wander Life Tours, Co. v. Liddy (Iowa 1973), 207 N.W.2d 27 (application for the issuance of a license to sell and distribute fertilizer products).) In filing its application with the Commission to qualify for the privilege of bidding on public contracts, Kodak bore the burden of proof in establishing that it satisfied the Commission’s requirements regarding underutilization and affirmative action programs. The hearing officer did not err in declaring that the burden of proof was upon Kodak.

The appellate court erred, Kodak claims, in holding that a reviewing court will not set aside a decision of the Fair Employment Practices Commission unless it is contrary to the manifest weight of the evidence. It maintains that the proper question for review is whether the Commission’s decision is supported by a preponderance of the evidence.

There is somewhat unusual phrasing in the Act’s statement of the standard of proof to be followed at a hearing on a complaint before the hearing officer. Section 8.01(c) provides that a “determination sustaining a complaint [that an employer has engaged in an unfair employment practice] shall be based upon a preponderance of the evidence.” (Ill. Rev. Stat. 1975, ch. 48, par. 858.01(c).) This provides for the standard of proof and not for a standard of review either by the Commission or by a court. Section 8.02(d) states the standard for the Commission’s review of the findings of the hearing officer. (Ill. Rev. Stat. 1975, ch. 48, par. 858.02(d).) It provides: “The Commission shall adopt the hearing examiner’s findings of fact if they are not contrary to the manifest weight of the evidence.” In the case of appeals from an order of the Commission, section 10 of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 860) states that the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.) shall govern. Section 11 of the Administrative Review Act provides:

“No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” Ill. Rev. Stat. 1975, ch. 110, par. 274.

This provision has been interpreted as “limiting] the function of the reviewing court to ascertaining whether the findings and decisions of the administrative agency are against the manifest weight of the evidence.” (Davern v. Civil Service Com. (1970), 47 Ill. 2d 469, 471, cert. denied .(1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229. See also Wells Manufacturing Co. v. Pollution Control Board (1978), 73 Ill. 2d 226, 234; Basketfield v. Police Board (1974), 56 Ill. 2d 351, 358.) Thus, in a review by the Commission or by a court the manifest-weight standard is to be applied.

Decisions in the circuit courts and in the appellate court have differed on the question of the standard for judicial review i.e., whether the decision of the Commission was contrary to the manifest weight of the evidence or whether its decision was supported by a preponderance of the evidence. The opinion in General Electric Co. v. Illinois Fair Employment Practices Com. (1976), 38 Ill. App. 3d 967, and the majority and concurring opinions in School District No. 175 v. Illinois Fair Employment Practices Com. (1978), 57 Ill. App. 3d 979, are illustrative of the differing views which stem in part, at least, from this court’s decisions in Motorola, Inc. v. Illinois Fair Employment Practices Com. (1966), 34 Ill. 2d 266, and Olin Corp. v. Fair Employment Practices Com. (1977), 67 Ill. 2d 466.

We would make it clear that in reviewing decisions of the Commission the court will not reweigh the evidence and decide what is the preponderance of the evidence but will follow the familiar standard for administrative hearings that the decision by the Commission will not be set aside unless it is contrary to the manifest weight of the evidence.

An examination of the record shows that the decision of the Commission here was not contrary to the manifest weight of the evidence. A factor in determining what would be a reasonable recruitment area is to look to, as the rules do, where the employer “might reasonably recruit.” (Art. IV, sec. 4.2(a) (Nov. 30, 1972).) To determine that, one reasonably would ascertain the locations from which present employees are commuting. The record shows that close to half of Kodak’s employees at Oak Brook live outside of the recruitment area proposed by the company to the Commission as a part of its affirmative action program. Nineteen percent of its employees reside in the city of Chicago, no part of which was included in the recruitment area. Forty percent of the applicants for employment were shown to live outside the suggested recruitment area and 13% of them resided in Chicago. Kodak’s attempt to cast a different light upon these undisputed figures does not persuade. It cannot be denied that there is force to Kodak’s argument that the distance from and the traveling time between the place of employment and an employee’s residence have a direct effect on the rate of absenteeism, tardiness, and even the affinity with his employer and fellow employees, but the fact is that almost half of Kodak’s employees do live outside the proposed area.

Kodak cites Timken Co. v. Vaughan (N.D. Ohio 1976), 413 F. Supp. 1183, and says, quoting from the opinion, that the most accurate definition of a reasonable recruitment area is “ ‘the local area within which the contractor can reasonably expect people to commute.’ ” (413 F. Supp. 1183, 1189.) But it can be seen that the court made reasonableness the key, and Timken does not support Kodak’s argument that its recruitment area is reasonable. In that case, too, the facts were unlike those here. The court observed that the only means of transportation between the company involved and Mansfield, a city whose minority population was 15% of its total, was a “comparatively old, two-lane highway which is heavily traveled by both automobiles and trucks.” (413 F. Supp. 1183, 1187.) Given the condition of the road and the traveling time involved between the two locations and other factors not present in this case, the court judged that it was not reasonable to expect workers to commute. Here, of course, many roads provide access to Oak Brook.

For the reasons given, we hold that the Commission’s decision that Kodak’s proposed recruitment area was not reasonable is not contrary to the manifest weight of the evidence.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 53416.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FRED HOLLOWAY et al., Appellees.

      Opinion filed June 4, 1981.

    Rehearing denied October 19, 1981.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Edmond S. Rees, State’s Attorney, of Carlinville (Kenneth R. Boyle and Keith P. Vanden Dooren, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, of the Office of the State Appellate Defender, of Springfield (Karen Munoz, Assistant Defender, of counsel), for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The defendants, Fred Holloway and Steve Moore, in the circuit court of Macoupin County, were charged by indictment with three counts of arson, in violation of section 20 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 20 — 1). Defendant Moore was also charged by indictment with one count of criminal damage to property (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 1). In addition, each of the defendants was charged by information with two counts of conspiracy to commit arson (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 2). All of these charges arose out of an early-morning fire on February 2, 1977, that destroyed a two-story residence owned jointly by defendant Holloway and his wife, located in Virden. Prior to trial, defendant Holloway filed a written motion pursuant to section 114 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 12) to suppress evidence illegally seized. The basis for the motion was that after the blaze had been extinguished and the firemen had left the scene, a fire investigator, acting in his official capacity, made several entries into the premises in order to determine the cause of the fire. During these entries, which were made without permission or a warrant, the evidence sought to be suppressed was seized. Defendant Moore, who had no property or possessory interest in the premises, orally joined in this motion, which was granted by the trial court. On appeal by the State, pursuant to our Rule 604(a) (73 Ill. 2d R. 604(a)), the appellate court, with one justice dissenting, affirmed the order suppressing the evidence based upon its interpretation of Michigan v. Tyler (1978), 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942. The court also held that the State waived its right to challenge defendant Moore’s standing to join in the motion by having failed to raise the issue at the hearing. (82 Ill. App. 3d 703.) We granted leave to appeal pursuant to Rule 315(a) (73 Ill. 2d R. 315(a)).

For the reasons expressed in this opinion, we find the motion to suppress was properly granted and that the State has waived its right to challenge defendant Moore’s standing.

Fire broke out in the unoccupied Virden premises at about 2 a.m. on February 2, 1977. Officer Gary Plessa, a member of both the Virden police department and the volunteer fire department, received the call. After notifying the police dispatcher, who in turn notified the Virden volunteer fire department, Officer Plessa went to the scene, by which time the fire had completely engulfed the premises. Officer Plessa went to a nearby apartment complex to awaken residents and warn them of the impending danger. Defendant Moore was found in one of the apartments.

The blaze was described as a “major fire” requiring the services of 40 to 45 firemen with equipment from Virden and the nearby town of Girard. During the course of fighting the fire, a gasoline can was found lying in the snow some 50 feet away from the burning structure, but nothing else unusual or suspicious was found while the fire was being fought. The fire was extinguished by about 7 a.m., at which time the firemen and the equipment left the scene.

At about 7:30 a.m. the Virden fire chief contacted James R. Scott, a fire investigator who lived in the town of Benld, 30 miles from Virden. Scott was informed that his presence was required to investigate a “suspicious” fire, but it was not indicated that this ‘ ‘request was in any way of an emergency nature” which required his immediate presence. Scott arrived in Virden some two hours later, at approximately 9:30 a.m., but instead of going directly to the burned premises, went to the police station. Inspector Scott next went to the fire scene, where he examined the exterior of the structure and the gasoline can. Scott first entered the premises at about 9:45 a.m. and stayed until about 1 p.m. He went to the police station to get a photographer to take some pictures. He reentered the premises sometime that afternoon accompanied by a local photographer and caused pictures to be taken. Scott ceased his investigation that day at about 4:30 p.m. Testimony was produced at the hearing on the motion to suppress that the fire had rekindled twice during the period of Scott’s investigation but the nature and extent of these “rekindlings” were never clearly established. In any event, the “rekindlings” were not sufficient to hamper Scott’s investigation in any way, nor were they considered to be unusual. Scott did not accompany the fire fighters when they returned to the premises to extinguish the rekindled fires, and his presence and his investigation were not related to the rekindling of the fires.

On the following day, February 3, 1977, Scott returned to the scene with defendant Holloway, who explained that certain flammable liquids had been stored in the burned premises. Scott was satisfied that the places of storage were compatible with the type of fire pattern he had observed inside the building on the previous day and that he did not have an arson case. The investigation was closed until the autumn of 1978, when a witness implicated the defendants in the occurrence.

In People v. Tyler (1977), 399 Mich. 564, 250 N.W.2d 467, fire had broken out shortly before midnight on January 21, 1970, in a furniture store leased to defendant Tyler. Around 2 a.m. the fire was out but still smoldering when Chief See, who was responsible for determining the cause of the blaze, appeared on the scene. Lieutenant Lawson, present during the actual fire, informed See that two containers of flammable liquid had been found inside the building. The two men then entered the gutted premises without obtaining permission or a warrant and examined the containers. Based upon See’s observations during this entry, a police detective was called and several reentries were made and evidence seized throughout the morning. On February 16, 26 days later, several other warrantless entries were made and additional evidence seized pursuant to an arson investigation. The Michigan Supreme Court held that all of the evidence obtained from the premises had to be suppressed since the exigent circumstances created by the fire had abated when the blaze was extinguished, making the initial entry by See illegal.

On certiorari (Michigan v. Tyler (1978), 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942) the Supreme Court rejected as “unrealistically narrow” the dousing-of-the-last-flame rule as the test for determining when the exigent circumstances permitting warrantless entry into fire-damaged premises abate. The court observed that the owner of fire-damaged premises retains a privacy interest in the property. Therefore, entries into the premises by fire investigators, even for the purpose of ascertaining the cause of a fire, must be made pursuant to the warrant requirements of the fourth amendment.

“Thus, there is no diminution in a person’s reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman, or because his purpose is to ascertain the cause of a fire rather than to look for evidence of a crime, or because the fire might have been started deliberately. Searches for administrative purposes, like searches for evidence of crime, are encompassed by the Fourth Amendment.” (Michigan v. Tyler (1978), 436 U.S. 499, 506, 56 L. Ed. 2d 486, 496, 98 S. Ct. 1942, 1948.)

However, the court noted that the warrant requirement is suspended by exigent circumstances created by the fire itself.

“A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable.’ Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze.” (Michigan v. Tyler (1978), 436 U.S. 499, 509, 56 L. Ed. 2d 486, 498, 98 S. Ct. 1942, 1950.)

Thus the court held that the exigent circumstances created by a fire do not end with the dousing of the last flame because prompt determination of the origin of the blaze is part and parcel of the total fire-fighting function. Michigan v. Tyler (1978), 436 U.S. 499, 510, 56 L. Ed. 2d 486, 499, 98 S. Ct. 1942, 1950.

The court in Tyler was of the opinion that the investigation, which was begun as the fire was being extinguished and was discontinued because of smoke, steam, and darkness, could be continued later without a warrant.

“On the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22. As the fire was being extinguished, Chief See and his assistants began their investigation, but visibility was severely hindered by darkness, steam, and smoke. Thus they departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.” (Michigan v. Tyler (1978), 436 U.S. 499, 511, 56 L. Ed. 2d 486, 499, 98 S. Ct. 1942, 1950-51.)

The entries occurring on February 16, however, being clearly detached from the circumstances that allowed the initial warrantless entry, were illegal, and any evidence obtained during those reentries was entitled to be suppressed.

In the final paragraph of the opinion, the Supreme Court stated:

“In summation, we hold that an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches.” (Michigan v. Tyler (1978), 436 U.S. 499, 511, 56 L. Ed. 2d 486, 500, 98 S. Ct. 1942, 1951.)

We believe the gravamen of Tyler to be that since the function of fire fighting is broader than merely dousing the flames, officials may remain on the premises to continue, or enter to begin, a prompt investigation into the cause of a fire without first obtaining a warrant. Due to the need for prompt determination of the cause of a fire, the focus in determining whether a warrantless entry made after a fire had been extinguished was reasonable will be upon whether the entry was in furtherance of an investigation, promptly begun, in response to exigent circumstances created by or discovered during the fire itself. However, once the fire is out and the exigency has abated, warrantless entry by fire officials will not be permitted.

Generally, fire fighters and investigators will not run afoul of the Constitution by conducting prompt fire-scene investigations. The privilege of commencing an investigation and then leaving the scene and later returning without a warrant is not extended simply because of the fact that a structure has burned. Rather, when the circumstances indicate that prompt action is required to meet the exigencies of the event, viewed as a whole, then officials may investigate within a reasonable time after the flames have been extinguished. We must keep in mind that if an owner’s reasonable expectations of privacy in fire-damaged property are to be given fourth amendment protection, the privilege to begin an investigation into the cause of a fire without a warrant may not survive a departure and return to the scene absent an emergency situation. This interpretation of Tyler is consistent with the result reached in post-Tyler decisions in other jurisdictions. (Schultz v. State (Alaska 1979), 593 P.2d 640; Cleaver v. Superior Court (1979), 24 Cal. 3d 297, 594 P.2d 984, 155 Cal. Rptr. 559; State v. Olsen (Minn. 1979), 282 N.W.2d 528.) In each of these cases the evidence clearly established, and the courts held, that exigent circumstances existed at the time the investigations were begun, thereby justifying the warrantless entries.

In Tyler, as noted earlier, the investigation was actually begun while the fire was being fought when fire fighters discovered suspicious containers containing flammable liquids inside the premises. In the case at bar, fire fighters did not discover or observe anything unusual about the premises as the blaze was being fought. The gasoline can had been found outside the burned premises. Although firemen may not possess the expertise necessary to conduct detailed investigations, they are fully competent to begin an inquiry in response to conditions which may present a latent danger even after the flames have been extinguished. Here, unlike Tyler, no investigation was begun by firemen or officials on the scene. Moreover, no search for victims or entry was made to check for gas leaks or continuing electrical malfunctions, all of which would have been clearly permissible under the rationale of Tyler. As the Supreme Court in Tyler observed:

“The circumstances of particular fires and the role of firemen and investigating officials will vary widely. A fire in a single-family dwelling that clearly is extinguished at some identifiable time presents fewer complexities than those likely to attend a fire that spreads through a large apartment complex or that engulfs numerous buildings. In the latter situations, it may be necessary for officials — pursuing their duty both to extinguish the fire and to ascertain its origin — to remain on the scene for an extended period of time repeatedly entering or re-entering the building or buildings, or portions thereof. In determining what constitutes a ‘reasonable time to investigate,’ appropriate recognition must be given to the exigencies that confront officials serving under these conditions, as well as to individuals’ reasonable expectations of privacy.” (Michigan v. Tyler (1978), 436 U.S. 499, 510 n.6, 56 L. Ed. 2d 486, 499 n.6, 98 S. Ct. 1942, 1950 n.6.)

In our case the fire chief and his men simply extinguished the blaze and left the scene, apparently satisfied that no danger to the public lurked in the smoldering remains, and that no exigent circumstances required an immediate investigation. Under these facts, the conclusion is permissible that the State’s interest in promptly determining the cause of the fire must yield to the individual’s reasonable expectations of privacy in the burned premises. See generally, 3 W. LaFave, Search and Seizure secs. 10.4(a), 10.4(b), at 260-65 (1978).

In People v. Calhoun (1980), 49 N.Y.2d 398, 402 N.E.2d 1145, 426 N.Y.S.2d 243, the New York Court of Appeals upheld the denial of a motion to suppress evidence seized, by officials not originally on the scene, during a fire investigation promptly begun after the blaze was extinguished, where nothing unusual was noted during the blaze. The court was careful to point out, however, that the officials were “not told in advance that there was evidence of arson,” and were merely making a routine investigation into the cause of the fire. (49 N.Y.2d 398, 405, 402 N.E.2d 1145, 1149, 426 N.Y.S.2d 243, 247.) The court went on to observe that had their purpose been to gather evidence of arson, their conduct might well have exceeded the bounds of the emergency exception to the fourth amendment. 49 N.Y.2d 398, 405, 402 N.E.2d 1145, 1149, 426 N.Y.S.2d 243, 247.

Here, unlike Calhoun, Investigator Scott was told in advance that arson was suspected. The conduct of officials at the fire scene and the indication to Scott that no emergency requiring his immediate presence then existed makes the conclusion inescapable that Scott’s primary purpose was to search for evidence of a crime. Scott was not an official called in to make a routine search for victims or latent dangers in the smoldering debris, as was the case in Calhoun. As noted earlier, such an entry, promptly made by any official, would probably be permissible as a response to the exigent circumstance of the fire itself. Rather, Scott’s entry was a response to a suspicion harbored by the Virden fire chief that the blaze was of criminal origin. As such, his entry would be permissible only if an emergency continued to exist or his arrival could be considered a continuation of an investigation already begun by officials on the scene.

At the time the Virden fire department departed, no investigation had been started, none was in progress, and nothing had been discovered inside the premises during the course of fighting the fire which would justify the prompt, but nonetheless warrantless, intrusion by Investigator Scott. The gasoline can was discovered by firemen some 50 feet from the building, with no indication then apparent that it was in any way related to the blaze. Further, while the fact that the fire “rekindled” belies the conclusion that the fire was out, the record does not establish, as a matter of law, that the emergency presented by the initial blaze was not over. In any event, Scott’s entry upon the premises and his investigation were not in response to these subsequent fires, and the fact that they occurred cannot be viewed as a retroactive justification for the initial warrantless entry.

In the case at bar, the trial court considered the motion to suppress in light of the holdings in the Tyler decision. The trial court specifically found “that no emergency or exigent circumstance was presented to this court” which would excuse the investigator from securing permission to go upon the premises or from securing a warrant. This finding, when considered with the holding in Tyler, led the court to conclude that Scott’s investigation was detached from the initial emergency created by the fire and was made in violation of the defendant’s fourth amendment rights. We will not disturb the trial court’s ruling on a motion to suppress unless it is manifestly erroneous. (People v. Williams (1974), 57 Ill. 2d 239, 246, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506; People v. Clay (1973), 55 Ill. 2d 501, 505; People v. Brooks (1972), 51 Ill. 2d 156, 165.) We cannot say from the evidence presented to the trial court that its conclusion that no emergency or exigent circumstances existed that would justify Scott’s warrant-less entry upon the premises was manifestly erroneous.

We turn next to the question of whether the State has waived its right to challenge the standing of defendant Moore. The State made no objection when counsel for defendant Moore orally joined in defendant Holloway’s motion to suppress. Also, the State filed a motion to reconsider the court’s ruling on the motion to suppress. Again, neither in the motion nor on its oral argument did the State raise the question of Moore’s standing. Issues not raised in the trial court are generally considered waived on appeal. (People v. Knight (1979), 75 Ill. 2d 291, 300.) The principle of waiver applies to the State as well as the defendant in a criminal case. (People v. McAdrian (1972), 52 Ill. 2d 250, 254.) Had the State made a timely objection, defendant Moore may have been able to satisfy the court that he did, in fact, possess an interest in the premises sufficient to give him standing to object to the warrantless entry. As noted in McAdrian, one of the basic considerations supporting the rule preventing a party from raising issues for the first time on appeal is that “[t]he failure to urge a particular theory before the trial court will often cause the opposing party to refrain from presenting available pertinent rebuttal evidence” which could have a bearing on the disposition of the question. (People v. McAdrian (1972), 52 Ill. 2d 250, 254. See also People v. McCullum (1977), 66 Ill. 2d 306, 316.) Consequently, we hold that the State has waived its right to challenge the standing of defendant Moore.

For the reasons heretofore expressed in this opinion, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 54021.
    CARADCO WINDOW AND DOOR, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Maria E. Lawson, Appellant).

      Opinion filed September 30, 1981.

      F. Don Kelly, of Peoria, for appellant.
    Howard W. Small, of Thomas, Mamer & Haughey, of Champaign, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is a workmen’s compensation case. The employee, Maria Lawson, filed a claim under the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) against Caradco Window and Door for accidental injury allegedly sustained in the course of her employment. The arbitrator entered an award for medical expenses, temporary total disability, and 45% loss of use of her left arm. The Industrial Commission, on review, confirmed the arbitrator’s decision as to the award of medical expenses; made an award of additional medical expenses incurred to that date; and, finding the claimant to be totally and permanently disabled, awarded her $108.30 per week for life. The circuit court of Champaign County found that the Commission’s determination that claimant’s injury arose out of her employment was against the manifest weight of the evidence, and set aside the award. Maria Lawson appeals to this court pursuant to Rule 302(a). 73 Ill. 2d R. 302(a).

Claimant was hired by Caradco as a window-sash assembler on November 8, 1976. At that time she was 35 years of age. On November 13, 1976, in the course of her usual duties, she was reaching up to remove a wooden part, weighing approximately two pounds, from a bin above her head when she felt a sharp pain in her neck and left arm running down to her left hand. The pain was so severe that she dropped the part; she was unable to move her left arm without great pain. Claimant was taken to Paxton Hospital and treated by the company doctor, Dr. Ronald Grove. Dr. Grove prescribed pain medication, muscle relaxants and a neck brace, and kept her off work for a week.

Claimant continued to work from November 20 through February 2, 1977, although she testified that she continued to have pain and weakness in her neck and left arm. During January 1977 she was treated by Dr. Milton Carlson, an orthopedic surgeon. On February 3, 1977, claimant was again hospitalized after another onset of severe pain. During February and early March, she was hospitalized twice under Dr. Carlson’s care for a total of 29 days. She received pain medication, muscle relaxants, heat packs, traction and physical therapy. Neurological and diagnostic tests were performed. She appeared to respond to this therapy and was free of symptoms by the time of her discharge from Mercy Hospital on March 7,1977.

After her release from the hospital, the claimant did not return to work. On March 22 she suffered another onset of pain after bending to pick up a fork from her kitchen floor, and on March 23 she was rehospitalized. She was discharged on April 6, 1977. Her neck and arm continued to give her trouble, however, and on April 21, 1977, she consulted Dr. Walter Petersen, an orthopedic surgeon in private practice.

Dr. Petersen initially prescribed the same course of treatment previously employed during claimant’s hospitalizations, with some apparent success. He subsequently advised claimant that a laminectomy (disc removal and fusion of the cervical vertebrae) might remove the source of her problem. The laminectomy was performed on June 30, 1977; however, the fusion was unsuccessful and had to be redone in October 1977.

By June 1978 claimant had so far recovered that Dr. Petersen released her to return to work. In August 1978, however, complications occurred involving the hip from which bone for the laminectomy graft had been taken. Further surgery to alleviate this problem had to be performed in October 1978. From October 1978 until the time of the review hearing in July 1979, although her hip improved, claimant was again troubled by neck and left arm pain, and was treated by Dr. Petersen and two other physicians during this period.

The dispute between the parties to this appeal centers on the issue of causal connection between the incident of November 13, 1976, and claimant’s subsequent medical problems. Caradco contends that Maria Lawson’s current condition of ill-being is the result of a preexisting spinal condition, and that the accident on November 13 did not aggravate this condition so as to cause a compensable injury. While not disputing that an accident occurred that was in the course of claimant’s employment, Caradco argues that there was no causal connection between that injury and her later hospitalizations and surgeries.

As a threshold issue, claimant contends that Caradco waived the issue of causal connection by agreeing at the hearing to the arbitrator’s recital of facts, including the statement that “on said date petitioner sustained accidental injuries which did arise out of and in the course of her employment.” We disagree. Caradco, by contesting liability for claimant’s medical expenses, clearly put their causal relation to the employment in issue. The determination of liability necessarily involves the issue of causation. The record indicates both parties’ recognition of this fact. Moreover, since claimant did not object before the arbitrator or the Commission to the introduction of evidence going to this issue, she cannot do so now. District 141, International Association of Machinists & Aerospace Workers v. Industrial Com. (1980), 79 Ill. 2d 544, 556-57.

No live testimony by medical experts was presented at the arbitration hearing or on review. Both sides introduced the medical records and reports of the treating physicians, including their diagnoses and medical opinions as to the relation between the November 13, 1976, injury and claimant’s later hospitalizations and surgeries. An excerpt from a report by Dr. Carlson, dated March 14, 1977, is representative:

“As far as the injury being work-related, I think that the original episode of neck and arm pain would have to be considered work-related, as she related a history of minor injury at work. She was sent in as a workmen’s compensation case. 999 I think that her neck problem is a combination of things involving some degenerative disease and a great deal, of anxiety and tension, and probably was a condition that preexisted her work injury; although, of course, it is certainly reasonable that the injury she sustained at work may have set off the episode of pain, and so forth, that resulted in her symptoms and subsequent hospitalization. ”

Dr. Carlson diagnosed claimant’s condition as a “syndrome *** that could have been due to either cervical arthritis, disc, or thoracic outlet syndrome.” Dr. Petersen diagnosed claimant as suffering from cervical spondylosis, which he felt was referring pain to the lower nerve roots of the left arm. Cervical spondylosis is defined as “a degenerative joint disease affecting the cervical vertebrae, intervertebral discs, and surrounding ligaments and connective tissue, sometimes with pain or paresthesia radiating down the arm as a result of pressure on the nerve roots.” Dorland’s Illustrated Medical Dictionary (25th ed. 1974).

Caradco also introduced records from two hospitals in Mississippi at which claimant was treated at various times during 1974 and 1975 for pain in her neck and left arm. (She also had surgery for lower back and leg pain, not involved here.) Claimant at that time related a history of “chronic posterior neck pain that was intermittent in character and usually aggravated by activity.” Neurological tests indicated spondylosis in an early stage that physicians regarded as of minor significance at the time. Claimant admitted the prior history of neck and arm pain, but stated that in 1975 the pain was different, more of a spasmic-type pain, and she could get rid of it with muscle relaxants. She also stated that her neck had given her no trouble after July 1975 until November 13, 1976. During most of this period she had been employed as assistant manager of a motel and also at a trailer court; her duties at the motel included making beds and helping in the kitchen, and her duties at the trailer court included making such minor repairs as laying tile and putting up paneling, involving lifting and reaching above her head, and she testified that she had had no complaints then. In August 1976 she worked for Webster Contractors, where she lifted heavy bags of vegetables and lifted potatoes above her head to put into a peeler.

The question whether a claimant’s disability is attributable to a degenerative condition or to the aggravation, by an accident, of a preexisting condition, is a question of fact for the Industrial Commission. (Republic Steel Corp. v. Industrial Com. (1980), 82 Ill. 2d 76, 86; Ross v. Industrial Com. (1980), 79 Ill. 2d 258, 261.) Its determination will be upheld, unless contrary to the manifest weight of the evidence, particularly where it involves the resolution of conflicting medical opinions. (Azzarelli Construction Co. v. Industrial Com. (1981), 84 Ill. 2d 262, 267; Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 544.) Here there was medical testimony in the record from which the Commission could have inferred that the claimant’s work activities aggravated her preexisting condition. The Commission could also consider the claimant’s own testimony concerning her condition before and after the accident, medical testimony not being required to establish a causal connection. (Pulliam Masonry v. Industrial Com. (1979), 77 Ill. 2d 469, 471.) The Commission has the responsibility for assessing credibility and drawing reasonable inferences from testimony, and we will not substitute our judgment simply because we might have reached a different conclusion. Viewing the record as a whole, we cannot say that the Commission’s determination with respect to causal connection was against the manifest weight of the evidence.

Caradco raises the additional issue whether claimant has sustained her burden of proving permanent and total disability. For purposes of section 8(f) of the Act (Ill. Rev. Stat. 1977, eh. 48, par. 138.8(f)), a claimant is permanently and totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists (C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278). In determining whether the employee is capable of performing any useful services, the Commission must consider the age, training, education and skills of the employee, the extent of the injury, and the nature of the employment. A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482, 489; Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312.

We believe that claimant presented facts sufficient to permit the Commission to infer that she was permanently and totally disabled within the meaning of section 8(f). An employee does not have to be reduced to a state of total incapacity before total and permanent disability compensation can be awarded. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 360.) Claimant testified that she had sought work, and had consulted with the Illinois Division of Vocational Rehabilitation, but had been unable to find employment. The only medical testimony regarding disability was that of Dr. Petersen, who stated that permanent partial impairment of the use of claimant’s left arm was anticipated. However, claimant’s own testimony to continuing pain and loss of strength of grip in her left hand, and that she required her daughter’s help in doing housework, would permit the Commission to infer that she would be unable to work at any job requiring lifting, reaching over her head, or other similar physical activity. Though the record contains no information concerning her education or training, her previous job experience indicates that she is qualified only for unskilled or semi-skilled employment of types which would usually involve at least some light physical labor. We find that claimant made a prima facie showing of disability, and that under the circumstances the burden was on the employer to show that there were jobs available that claimant could perform without endangering life or health. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353.) The judgment of the circuit court of Champaign County is therefore reversed.

Judgment reversed; award reinstated.