author: MR. JUSTICE RYAN

text:
    (No. 51649.
    A.M.T.C. OF ILLINOIS, INC., AERO MAYFLOWER TRANSIT COMPANY, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charles E. Lunon, Appellee).

      Opinion filed November 21, 1979.

      Peregrine, Stime & Newman, Ltd., of Wheaton (Roy I. Peregrine, of counsel), for appellant.
    Gallagher & Petrak, of Chicago (Richard F. Gallagher and Russell H. Petrak, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The employer, A.M.T.C. of Illinois, Inc., Aero Mayflower Transit Company, Inc. (hereafter referred to as A.M.T.C.), appeals from the order of the circuit court of Cook County confirming the Industrial Commission’s award which affirmed the arbitrator’s finding that the employee, Charles E. Lunon, is permanently and totally disabled. There is no dispute that the injury arose out of and in the course of the employee’s employment; the only issue is whether the employee has sustained his burden of proving permanent and total disability.

On February 28, 1975, Lunon, age 45, while moving a dresser down a flight of stairs, experienced a pain in his groin, which caused him to lose his balance and fall. He injured his left knee and ankle. He was taken to the Ravenswood Hospital Medical Center in Chicago. His left knee and ankle were X-rayed and bandaged and he was told to see his own doctor. A.M.T.C. later sent Lunon to O’Hare Industrial Clinic, where more X rays were taken, new bandages applied and he was checked for a hernia and fitted with a truss.

From February 28, 1975, through February 18, 1976, Lunon was under the care of Dr. Otto Bouc of O’Hare Industrial Clinic, receiving physical therapy treatments for the injuries to his left knee and ankle. He returned to work for a few weeks in July 1975, then took two weeks’ vacation. He returned to therapy until Dr. Bouc directed him to return to work on November 6, 1975. Upon returning to work, A.M.T.C. sent him to the Franklin Park Industrial Clinic to obtain a second medical opinion. Xrays were taken and A.M.T.C. was advised that Lunon not be permitted to return to work since he was a poor risk to do heavy manual labor such as lifting or driving because it might aggravate his knee problem. Lunon continued physical therapy. On December 19, 1975, at the request of A.M.T.C., Lunon underwent an orthopedic examination by Dr. Sid Shafer, who concluded that Lunon could return to work. In January 1976, an arthrogram was performed upon Lunon’s knee by Dr. Malcolm A. Tengblad at the Chicago Osteopathic Hospital. The tests showed a small posterior horn-tear of the medial meniscus of petitioner’s left knee and a small popliteal cyst. An operation was prescribed to alleviate the problem but never took place.

On March 4, 1976, the parties appeared before an arbitrator, but the hearing was continued until more medical evidence could be obtained. The employee saw several doctors on his own and one at the request of A.M.T.C. Arbitration resumed on May 5, 1976. The medical testimony presented before the arbitrator was extensive and conflicting. However, it is clear from reading the medical testimony most favorable to Lunon that he suffered a possible torn medial meniscus, a contusion, strain, swelling, impaired mobility, weakness, stiffness, tendinitis and synovitis of the left knee and ankle and a possible cyst on the left knee. Lunon testified during arbitration that his left leg bothered him and there was a burning in the muscles of his left knee and ankle and a tightening in the calf of his left leg. He also testified that he had not sought other employment since the injury in question. On May 18, 1976, there was an arbitration award under section 19(b) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)) for temporary disability, the condition not having reached permanent status. The arbitrator heard additional evidence on June 19, 1977. Lunon testified that his left knee bothered him in damp weather, was stiff in the mornings, clicked when going up and down stairs, and had a burning sensation at night and a throbbing pain like a heartbeat. He stated that he had not sought employment and that he could not work because he “couldn’t go up and down stairs carrying furniture and heavy objects like cartons.” Again, there was conflicting medical testimony concerning the extent of the injury and the desirability of surgery. The employee’s doctor’s reports suggested that he have surgery to alleviate the knee ailment, while A.M.T.C.’s doctors felt surgery was not necessary.

A report by one of Lunon’s doctors, Dr. Raymond Schlueter, and a medical report by the Chicago Osteopathic Hospital, contained Lunon’s medical history. The Chicago Osteopathic Hospital record revealed that Lunon suffers from numerous physical maladies besides the left leg problem, which has a long history. He suffered left knee pains caused by an injury dating back to 1947 or 1948 while employed at Western Electric. The knee pain occurred again when he reinjured himself on the job at the Stone Container Corp. in 1952. The symptoms reoccurred in 1972 after another job-related accident. Lunon re-injured his left leg in May 1974 and received $3,000 for 10% loss of use of the left leg in a settlement contract approved by the Industrial Commission. In the summary of his report, Dr. Schlueter called Lunon an “industrial cripple.” After all the evidence, the arbitrator found that Lunon was completely disabled due to the industrial accident and thus wholly and permanently incapable of work. The Industrial Commission and the circuit court upheld the award. The employer contends that the evidence in this case fails to meet the required factual prerequisite for a permanent and total disability award.

We have held on numerous occasions that “an employee is totally and permanently disabled for the purpose of workmen’s compensation benefits when he is unable to make some contribution to industry sufficient to justify payment to him of wages.” (C. R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 278; Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 320.) However, this does not require that the injured party be reduced to a state of total physical or mental incapacity or helplessness. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353.) A person is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. (Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273, 278; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255; South Import Motors, Inc. v. Industrial Com. (1972), 52 M. 2d 485.) Therefore, if an employee can take up some form of employment without seriously endangering his health or life he is not entitled to total and permanent disability compensation. E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353; Jefferson Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 85.

A claimant has the burden of proving all the elements of his case, including the extent and permanency of the injury, in order to recover benefits under the Workmen’s Compensation Act. This burden of proof must be met by a preponderance or greater weight of the evidence, and an award that is against the manifest weight of the evidence must be set aside. Liability cannot be premised upon imagination, speculation or conjecture, but must arise from facts established by a preponderance of the evidence. Arbuckle v. Industrial Com. (1965), 32 Ill. 2d 581.

In the present case, the burden is upon Lunon to establish or at least present facts from which it can be inferred that he is permanently and totally disabled. This the claimant has failed to do. None of the medical reports admitted into evidence state that he is permanently and totally disabled, nor does he testify that he is permanently and totally disabled. The claimant would have us believe that the phrase in Dr. Schlueter’s report labeling the claimant an “industrial cripple” entitles him to an award for permanent and total disability; however, the meaning of this phrase is unclear. The phrase comes at the end of the claimant’s medical history, which contains a plethora of industrial injuries, including the injury to the claimant’s left leg in 1974, which resulted in an award for 10% permanent disability to the leg. Anyone who is permanently disabled to any degree due to an industrial injury could be referred to as an “industrial cripple.” This phrase is not a legal term of art and does not signify that a person is permanently and totally disabled. Also, Lunon did not testify that he is permanently and totally disabled. He did testify before the arbitrator about the soreness and stiffness in his leg and that he cannot resume his prior job as a mover because it entails carrying heavy objects up and down stairs. However, the inability to do very strenuous manual labor does not necessarily make one permanently and totally disabled. Disability is not tested by any particular occupation, for even a skilled craftsman who can no longer perform his craft due to an industrial injury may not be deemed totally disabled if there is regular unskilled work that is continuously available to him. (2 A. Larson, Workmen’s Compensation sec. 57.53, at 10 — 129 to 10 — 130 (1974).) Therefore, just because the claimant cannot perform very strenuous physical labor does not, by itself, entitle him to an award as permanently and totally disabled.

In arriving at a determination of an award for permanent and total disability, the Commission should consider the extent of the claimant’s injury, the nature of his employment, his age, experience, training and capabilities. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353; Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312; Springfield Park District v. Industrial Com. (1971), 49 Ill. 2d 67.) In this case Lunon’s age, 45, is part of the record; however, there is little information concerning his training and capabilities. Lunon testified that he had worked as a full-time mover for A.M.T.C. for 7 years prior to this injury and as a part-time mover for 6 years prior to becoming a full-time employee. He also stated that he performed other work while he was a part-time mover, but this work was not specified. On a hospital report that is part of the record it is disclosed that Lunon only finished the 8th grade. We also learn from this report that he had been employed by Western Electric and the Stone Container Corp.; however, neither the type of work he performed nor the training he received is reflected in the record. Thus, we are unable to ascertain from the record what type of work the claimant is capable of performing besides that of a mover, nor can we ascertain his training or capabilities.

If a claimant’s physical disability is limited in nature so that he is not obviously unemployable, then it is not unreasonable that the burden be upon him to establish the unavailability of work to a person in his circumstances. This burden can be met by showing that reasonable efforts were made to secure suitable employment — the kind of employment that can be performed by a person in his circumstances. (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353; 2 A. Larson, Workmen’s Compensation sec. 57.61, at 10 — 138 (1974).) In the present case, Lunon did not attempt to seek other employment, nor did he testify that he cannot perform work other than heavy moving due to physical inability or lack of training and skills.

For the reasons stated herein we find that the claimant has not met his burden of proof. The judgment of the circuit court of Cook County is therefore reversed, and the cause is remanded to the Industrial Commission for further hearing.

Reversed and remanded.


source: Caselaw Access Project

author: MR. JUSTICE RYAN MR. JUSTICE CLARK,

license: Public Domain

text:
    (No. 51003.
    KERASOTES RIALTO THEATER CORPORATION et al., Appellees, v. THE CITY OF PEORIA et al., Appellants.

      Opinion filed November 21, 1979.

      CLARK, J., concurring in part and dissenting in part.
    David L. Thomas and Brian M. Nemenoff, of Peoria, for appellants.
    Cassidy, Cassidy, Mueller & Price, of Peoria (Richard D. Price, Jr., of counsel), for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This is a direct appeal to this court under Rule 302(b) (58 Ill. 2d R. 302(b)) from an order of the circuit court of Peoria County declaring the city of Peoria tax on admissions to amusements unconstitutional.

On October 22, 1976, plaintiffs, who are principally owners of theaters in Peoria, filed a complaint for declaratory judgment challenging the validity of an ordinance of the city of Peoria (a home rule city) imposing a 2% tax on admissions to amusements. The ordinance placed the incidence of the tax on the consumer. The complaint alleged inter alia the unconstitutionality of four categories of exemptions from the tax. On November 9, 1976, the Peoria city council amended the ordinance, deleting the four categories of exemptions and providing in the amended ordinance for two categories of exemptions. Plaintiffs then filed an amended complaint seeking relief covering two periods of time, namely, (1) from August 31, 1976, to November 9, 1976 (the period during which the original ordinance was in effect), and (2) after November 9, 1976 (the period the amended ordinance was in effect). After the trial court’s decision on June 9, 1978, holding the ordinance invalid, the Peoria city council passed a new ordinance imposing its admissions tax. The new ordinance is not involved in this litigation.

The amended complaint was in six counts. Count I alleged that the tax was in fact a nonuniform special assessment and therefore invalid. Count II alleged that the ordinance in effect from August 31, 1976, to November 9, 1976, contained arbitrary and discriminatory exemptions. Count III alleged that after November 9, 1976, the amended ordinance was administered in an arbitrary and discriminatory manner. Count IV alleged that the ordinance in effect after November 9, 1976, contained arbitrary and discriminatory exemptions. Count V alleged that as applied and enforced after August 31, 1976, the ordinance was in fact an illegal occupation tax. Count VI alleged that a home rule unit has no authority to assess a tax against certain basic human rights — the right to witness an amusement. The trial court granted the defendants’ motion for summary judgment as to count I (special-assessment theory) and count VI (basic-human-rights theory). Following a hearing on the remaining counts, the circuit court entered judgment in favor of the plaintiffs, holding the ordinance to be unconstitutional. The defendants appealed from the order declaring the ordinance unconstitutional and the plaintiffs cross-appealed from the summary judgment order as to counts I and VI.

The ordinance enacted August 31, 1976, provided:

“(a) There is hereby levied and imposed upon privilege of participating in or witnessing an amusement within the City of Peoria a tax of two percent (2%) of the admission fee charged to said amusement exclusive of other state or federal taxes; provided however, that said tax shall not apply to or be imposed upon the privilege of participating in or witnessing of any amusement the proceeds of which, after payment of reasonable expenses, inure exclusively to the benefit of:
(1) not-for-profit religious, educational, charitable institutions, societies or organizations; or
(2) societies or organizations maintained for the prevention of cruelty to children or animals; provided, however, that no part of the net earnings under Paragraphs (1) and (2) inure to the benefit of an owner;
(3) governmental units, boards, commissions and bodies duly organized under the laws of the City of Peoria, State of Illinois or United States of America;
(4) a resident society, organization, association, corporation, entity or person advancing the cultural interests of the City of Peoria through the local production of live theatrical and dramatic presentations to a seated audience of any open-air or enclosed theater, auditorium or the like which has a seating capacity, including balconies, not exceeding 700 persons.
(b) The ultimate incidence of and liability for payment of said tax shall be borne by the person who seeks participation or admission to any such amusement, said person hereinafter referred to as ‘consumer’.
(c) The tax herein levied shall be paid in addition to any and all other taxes and charges. It shall be the duty of the owner, manager or operator of every amusement in the City to act as trustee for and on account of the City, and to secure said tax from the consumer and pay over to the City Comptroller said tax under procedures prescribed by the City Comptroller or as otherwise provided in this ordinance.
(d) Every person required to collect the tax levied by this ordinance shall secure said tax from the consumer at the time he collects the admission or participation fee charged for the amusement. Upon the invoice receipt or other statement or memorandum of the rent given to the renter at the time of payment, the amount due under the tax provided in this ordinance shall be stated separately on said documents.”

On November 9, 1976, after the complaint was filed, that part of paragraph (a) of the ordinance set out above, which provided for the exemptions from its application, was amended so that there were only two subparagraphs providing for exemptions:

“(1) not-for-profit religious, educational, or charitable institutions, societies or orgainzation, provided, however, that no part of the net earnings are retained or retainable by the owner.
(2) grammar, junior high and high schools located within the City of Peoria.”

It is contended by the plaintiffs that the four exemptions from the tax contained in the original ordinance, and the two exemptions contained in the amended ordinance are unreasonable, arbitrary and not related to the purposes of the ordinance. This court, in Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432-33, summarized the general principles of law relating to classification for purposes of taxation, stating:

“It is well established that legislative bodies have very broad powers in establishing classifications defining the objects of taxation which will withstand constitutional attack so long as the classifications are reasonable. [Citations.] The legislative determination as to those persons who are to be taxed and those not taxed must not be arbitrary [citation], and the classification must bear some reasonable relationship to the object of the legislation [citation]. However, it is equally well settled that there is a presumption favoring the validity of classifications made by legislative bodies in taxing matters and that one who attacks them has the burden of proving such classifications to be arbitrary and unreasonable. [Citations.] ”

The plaintiffs acknowledge that they have the burden of proving the classifications to be arbitrary and unreasonable but state they have met this burden, contending that the record establishes that there is no administrative, fiscal or accounting justification for the exemptions. While plaintiffs presented evidence to this effect, they have not established the invalidity of the classifications contained in the two ordinances.

Although the tax is placed on the consumer, the exemptions are based on the nature of the entity to which the net proceeds of the amusement inures. This court has, on several occasions, upheld classifications where the exemptions have taken their character from an entity other than that upon which the incidence of the tax has been placed. In People ex rel. Holland Coal Co. v. Isaacs (1961), 22 Ill. 2d 477, this court considered the validity of exemptions contained in the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1953, ch. 120, par. 441). Although the incidence of the tax was placed upon the retailer, the exemptions were based upon the nature of the purchaser. These exemptions were granted primarily to governmental, religious and charitable bodies. In Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, this court considered an ordinance of the city of Chicago which, as in this case, placed the incidence of the tax upon the consumer (upon the use and privilege of parking a motor vehicle in or. upon any parking lot or garage). However, certain exemptions from the tax were based upon the nature of the parking facility in which the vehicle was parked. In Williams v. City of Chicago (1977), 66 Ill. 2d 423, this court upheld an ordinance which placed the incidence of the tax upon the lease of personal property but defined the types and categories of personal property the lease of which was subject to the tax so that the leasing of many types of personal property was not subject to the tax. Therefore the exemptions in the ordinance of the city of Peoria, based upon the nature of the entity to which the proceeds of the amusement inures, are not objectionable if such classification is otherwise reasonable.

The exemptions set out in the amended ordinance are classifications that essentially parallel those exemptions contained in the Revenue Act of 1939 (see Ill. Rev. Stat. 1975, ch. 120, par. 500.1 et seq.), which are authorized by article IX, section 6, of the Illinois Constitution of 1970. The classifications contained in the August 31, 1976, ordinance, though broader than those contained in the later amended ordinance, nonetheless are limited to entities which provide services and perform functions similar in nature to those of the entities exempt from taxation under the Revenue Act of 1939. They are not commercial enterprises but are governmental and nongovernmental organizations the purposes of which are to serve, benefit and improve the community in general. Thus, there is a difference between the organizations stated in the exemptions and those that are generally delegated to collect the tax from the consumer and pay it over to the city, and this difference would appear to constitute a basis for classifying the exempt bodies differently from the others.

Placing the consumers of these exempt bodies in a different class from the patrons of other amusements and exempting these consumers from taxation would appear to be reasonable. There was evidence presented in the trial court that those who attend functions presented by the exempt bodies often do so not only for the purpose of entertainment, but also for the purpose of supporting the organization presenting the amusement. This may not be universally true; however, the evidence shows that it is not uncommon.

Although the tax is on the consumer, the ordinance places substantial obligations upon the organization which furnishes the amusement. It must collect the tax from the consumer, hold it as trustee for the city, and pay it over to the city at specified times. These duties involve a certain amount of bookwork, administrative duties and financial burdens which the city has seen fit not to impose upon the exempt organizations. These organizations perform many functions and services which the city itself might otherwise be called upon to furnish. By relieving these exempt bodies from the burden of collecting, paying over and accounting for the tax, the city could well have reasoned that more effort and money could thereby be devoted to the beneficent purposes of the organizations.

Because of these differences, which we find to constitute a reasonable basis for the classifications contained in the ordinances, we hold that the plaintiffs have not sustained the burden of establishing that the classifications were arbitrary or unreasonable. We find that the trial court’s holding that the classifications were unreasonable was against the manifest weight of the evidence.

It is contended that the manner in which the amended ordinance was administered was arbitrary, capricious and unreasonable. It is contended that after the ordinance was amended the city continued to not collect the tax from the organizations that were formerly exempt under the original ordinance. This, it is argued, resulted in an unequal application of the tax. The plaintiffs rely upon Yick Wo v. Hopkins (1886), 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064, where the court considered an ordinance of the city of San Francisco which was enforced in a discriminatory manner. The case involved a writ of habeas corpus. The petitioner had applied for a permit to conduct his laundry business but the application was refused, although all of the requirements had been complied with. The petitioner had been arrested for conducting his laundry business without a permit. The Supreme Court held that the arbitrary denial of the permit to the petitioner and also the denial of permits to about 200 other Chinese, while granting permits to 80 others who were not Chinese, constituted illegal discrimination and a denial of equal protection.

Yick Wo is recognized as the landmark case on arbitrary application and enforcement of laws. However, subsequent decisions of the Supreme Court and the application of Yick Wo in State and lower Federal courts have refined the doctrine of that case. It is now generally recognized that the doctrine reaches only intentional or purposeful discrimination. Mere laxity in enforcement does not constitute a denial of equal protection. There must be some conduct which, in effect, amounts to an intentional violation of practical uniformity. (Sunday Lake Iron Co. v. Township of Wakefield (1918), 247 U.S. 350, 62 L. Ed. 1154, 38 S. Ct. 495; Mackay Telegraph & Cable Co. v. City of Little Rock (1919), 250 U.S. 94, 63 L. Ed. 863, 39 S. Ct. 428; Tieger, Police Discretion and Discriminatory Enforcement, 1971 Duke L.J. 717, 724-29; Comment, The Right to Nondiscriminatory Enforcement of State Penal Laws, 61 Columbia L. Rev. 1103, 1113-15 (1961).) Although the evidence in our case may indicate laxity in the enforcement of the Peoria amusement tax ordinance, the plaintiffs have not established the intentional or purposeful discrimination necessary to the application of the Yick Wo doctrine. In Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, 427, this court held that the failure to apply the taxing ordinance uniformly would not render the ordinance in that case invalid.

It is also contended that the Peoria amusement tax is in fact an illegal occupation tax. Article VII, section 6(e), of the Illinois Constitution of 1970 permits a home rule unit of local government to impose taxes upon occupations only as provided by the General Assembly. This same argument was urged in challenging the validity of the Chicago cigarette tax ordinance which this court considered in S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56. In that case it was held that the incidence of the tax was on the consumer, although the tax ordinance placed responsibility for collecting and remitting the tax on the wholesaler and retailer. The tax in that case was held not to be an occupation tax. This court has likewise sustained the validity of home rule tax ordinances against similar charges in Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, and Mulligan v. Dunne (1975), 61 Ill. 2d 544. Also, in Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, an amusement tax ordinance of the town of Cicero, a home rule unit, was upheld. In that ordinance the incidence of the tax was not specifically placed upon the consumer as in our case, but was assessed on the basis of the number of individuals witnessing or participating in the amusement. Nonetheless, this court held that the tax was not a tax on an occupation. Under the previous decisions of this court, it is clear that the tax levied by the Peoria city ordinances was not a tax on an occupation.

The trial court granted summary judgment for the defendants on two counts. In count I of the amended complaint, it was contended that the tax was in fact a special assessment designed to finance Peoria’s civic center. The ordinance does not specify that the proceeds from the tax are to be used for that purpose or for any specific purpose; thus the proceeds of the tax may be applied by the city council to any corporate purpose of the municipality. The command of uniformity (Ill. Const. 1970, art. IX, sec. 2) governs the assessment and the collection of a tax and not the distribution of the proceeds. The rule applicable to the use of the proceeds requires that tax revenues be used for corporate purposes of the municipality levying the tax. (Board of Library Directors v. City of Lake Forest (1959), 17 Ill. 2d 277.) It is not argued here that an expenditure to finance the Peoria civic center would not be for a corporate purpose of the city of Peoria. Thus, although some, or even a substantial portion, of the proceeds from the amusement tax may be used to finance the civic center, that fact would not render the tax invalid. Plaintiffs here argue only that a material issue of fact existed which precluded the entry of summary judgment on count I, but they do not state what the material issue of fact is. We conclude that the trial court properly entered summary judgment in favor of the defendants on count I.

Count VI of the amended complaint alleged that the tax was a tax on a basic human right and is therefore invalid. This is a revenue not a license ordinance. It is an exercise of the power to tax given to a home rule unit by article VII, section 6(a), of the Illinois Constitution of 1970. It is a tax on the privilege of witnessing and participating in amusements. This court has upheld similar taxes on the privilege of purchasing cigarettes (S. Bloom, Inc. v. Korshak), on the privilege of parking automobiles (Jacobs v. City of Chicago), and on the privilege of leasing certain personal property (Williams v. City of Chicago). Under the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 482 et seq.), our homes are taxed, as is any real estate that may be used in earning a livelihood. This would seem to involve taxation of some rather basic rights. We see no merit in plaintiffs’ contention and find that the trial court properly entered summary judgment in favor of the defendants on count VI.

For the reasons stated above, the judgment of the circuit court of Peoria County is reversed as to the judgment entered in favor of the plaintiffs on counts II, III, IV and V of the amended complaint and is affirmed as to the judgment entered in favor of the defendants on counts I and VI of the amended complaint.

Affirmed in part and reversed in part.

MR. JUSTICE CLARK,

concurring in part and dissenting in part:

I am aware that the burden of proving classifications of a tax burden to be arbitrary and unreasonable is placed on the one who attacks the classifications (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 433), and that the burden is a heavy one. The majority decision, however, effects two results: the burden is now an insurmountable one; and a court must go to any lengths in order to find classifications reasonable. The lengths gone to here defy reason, ignore the party bearing the incidence and burden of the tax, and contravene the 1970 Constitution.

There is no question that the “ultimate incidence of the tax [may be] imposed on the participant, observer or purchaser” of an amusement; in other words, an amusement tax may be levied on a consumer. (Board of Education v. City of Peoria (1979), 76 Ill. 2d 469, 474-75; and see cases there cited, including Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, 424.) Clearly the ordinance attempts to do just that. The issue here focuses on the classes of amusement operators — “collectors” who are exempt from the burden of collection from the consumer-taxpayer. Section 2 of article IX of the 1970 Constitution provides:

“In any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly. Exemptions, deductions, credits, refunds and other allowances shall be reasonable.”

This court has frequently stated that legislative bodies have very broad powers to establish reasonable classifications in defining the subjects and objects of taxation. (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432; accord, Klein v. Hulman (1966), 34 Ill. 2d 343, 346.) “The legislative determination as to those persons who are to be taxed and those not taxed must not be arbitrary [citation], and the classification must bear some reasonable relationship to the object of the legislation.” (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432.) “Such classification must, however, be based on real and substantial differences between persons taxed and those not taxed.” Klein v. Hulman (1966), 34 Ill. 2d 343, 347.

Despite the presumption of validity of such legislation (Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432; Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 364, 35 L. Ed. 2d 351, 358, 93 S. Ct. 1001, 1006), I believe the plaintiffs have successfully rebutted that presumption. The ultimate incidence of the tax is on the consumer. (For that reason I agree with the majority that the tax is not on an occupation. Also, not everyone who presents an amusement for gain is necessarily in the occupation of producing or conducting amusements. (Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 22.)) Because the consumer of the amusement bears the incidence of the tax (as well as the economic burden (see S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 63)), I believe that the exemptions from the tax must be based on that class of taxpayer (and not on the collector-operator). In other words, classifications within the taxpaying group of consumers of amusement must “be based on real and substantial differences between persons taxed and those not taxed” (Klein v. Hulman (1966), 34 Ill. 2d 343, 347; People ex rel. Holland Coal Co. v. Isaacs (1961), 22 Ill. 2d 477, 481), and “must bear some reasonable relationship to the object of the legislation” (People ex rel. Holland Coal Co. v. Isaacs (1961), 22 Ill. 2d 477, 480). (Exemptions and classifications are separate concepts under section 2 of article IX of the 1970 Constitution. (Head v. Korshak (1976), 62 Ill. 2d 226, 229.))

The exemptions here are not reasonable as required by the Illinois Constitution (art. IX, sec. 2). The rationale in Board of Education v. City of Peoria, above, is helpful. In that case, the circuit court held that ordinances providing for an amusement tax (the successor to the ordinance at issue here) and a tax “upon the privilege of purchasing food or alcohol” were unenforceable against the school district and park district of Peoria. After carefully noting that certain exemptions from nonproperty taxes would apply to the school and park district (e.g., retailer sales made to governmental bodies are exempt from a retailers’ occupation tax, and governmental bodies are exempt from paying the use tax on personal property purchased at retail), we held that the districts were not free to disregard collection of the taxes at issue because they fell “on the consumer, and cannot be considered as taxes imposed on another governmental unit.” (76 Ill. 2d 469, 475.) As against the school district, however, we did hold that the tax ordinances constituted “an unauthorized regulation” contrary to section 1 of article X of the 1970 Illinois Constitution. (76 Ill. 2d 469, 478.) Had the tax incidence been on the districts themselves and a specific exemption existed on that basis, even though the economic burden would remain on the consumer (S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 63), the districts would have been exempt from payment. That is the case here: had the incidence of the tax, which is controlling (52 Ill. 2d 56, 63), been on the operators or sponsors, the exemptions would be reasonable, even though the economic burden of the taxes is passed on to the consumer. The exemptions here simply have no nexus to the taxpayers.

If one views the question here as an attempt to classify the taxpayer or consumer, then the conclusion must be that the classification is unreasonable. There is no substantial difference — no difference whatsoever (except perhaps the intent) — between the taxpaying consumer of a movie at the Rialto and the nontaxpaying consumer of a movie sponsored by one of the exempt bodies in the defendant’s tax ordinance (Klein v. Hulman (1966), 34 Ill. 2d 343, 347). The classification of a consumer on the basis of what entity is amusing him or her is specious, especially if one considers whether there is a “reasonable relationship to the object of the legislation” (People ex rel. Holland Coal Co. v. Isaacs (1961), 22 Ill. 2d 477, 480). Here, according to testimony by the mayor of Peoria and the corporation counsel, the object of the amusement-tax ordinance was to raise revenue; and both the incidence and economic burden of the tax were on the consumers of amusement. Yet the consumer, classified as attending a nonprofit group’s movie, did not have to contribute to the city’s coffers. The city argues that the activities of nonprofit associations lessen the city’s burden of providing activities for the citizens and should therefore be encouraged by not requiring the associations to collect a tax from their patrons. This is not persuasive. I do not see how, so long as the tax and burden remain on the consumer, the nonprofit groups (or others “exempted” by the ordinance) would be harmed or discouraged from their good works. A taxpaying boxing enthusiast will attend a match (of equal caliber) whether sponsored by local, profit-seeking merchants or by the booster club of the local high school. The city also suggests that some of the “exempt” organizations might be incapable of actually collecting this tax. Overwhelming testimony, not refuted by the city, suggests the opposite.

I believe the “exemptions” set out in the ordinance, in its original form and as amended, are virtually inseparable from the ordinance as a whole. Moreover, because the ordinance required that the tax be collected “from the consumer at the time he [Le., the operator] collects the admission or participation fee charged for the amusement,” I must conclude the whole of the amusement tax ordinance is invalid under the Illinois Constitution (Ill. Const. 1970, art. IX, sec. 2).

I agree with the majority that the circuit court properly entered summary judgment in favor of the defendants on counts I and VI of the complaint. Testimony by the city’s mayor and corporation counsel evidenced that the ordinance was enacted for revenue purposes. It was within the circuit court’s competence to conclude the ordinance was not a special assessment. Plaintiffs’ argument that a basic human right to witness an amusement was violated is frivolous. They fail to show how, to cite cases or constitutional provisions, or to do anything more than say so in a 6V2-line paragraph. (Does the plaintiff suggest that property taxes violate the right to own property?)

For these reasons, I would affirm the judgment of the circuit court of Peoria County, and I concur in part and dissent in part.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51582.
    LEE A. SCOTT, Appellee, v. JAMES M. ROCHFORD, Superintendent of Police, et al., Appellants.

      Opinion filed November 21, 1979.

      William R. Quinlan, Corporation Counsel, of Chicago (Robert Retke, Kathleen Ransford and Daniel Pascale, Assistant Corporation Counsel), for appellant.
    Steven M. Levin and Allan A. Ackerman, of Chicago, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Lee A. Scott, appealed from the judgment of the circuit court of Cook County entered in favor of defendants, James M. Rochford, superintendent, John J. Thomas, administrator of personnel services, and John E. Sheerin, supervisor of the employment section, respeclively of the Chicago Police Department, entered upon allowance of their motion to dismiss. The appellate court reversed (66 Ill. App. 3d 338), and we allowed defendants’ petition for leave to appeal.

Plaintiff was appointed to the Chicago Police Department on April 26, 1976. On February 10, 1977, while off duty, he was involved in an incident in a tavern. On April 5, 1977, plaintiff received written notice from the defendant superintendent that with the consent of the department of personnel, effective April 5, 1977, he was discharged. The parties agree that no hearing was conducted prior to the discharge and that plaintiff, at that time, had been employed by the police department for more than 9 months and less than 1 year.

The Illinois Municipal Code provided in pertinent part:

“Original appointment shall be on probation for a period not to exceed 6 months to be fixed by the rules; provided that in municipalities with a population of more than 500,000 inhabitants, original appointment to the police department shall be on probation for a period not to exceed nine (9) months to be fixed by the rules of the department.” Ill. Rev. Stat. 1975, ch. 24, par. 10 — 1—14.
“In any municipality of more than 500,000 population, no officer or employee of the police department in the classified civil service of the municipality whose appointment has become complete may be removed or discharged, or suspended for more than 30 days except for cause upon written charges and after an opportunity to be heard in his own defense by the Police Board.” Ill. Rev. Stat. 1975, ch. 24, par. 10-1-18.1.

On October 24, 1975, pursuant to its home rule powers, the city of Chicago enacted chapter 25.1 — 5 of the Municipal Code. It provided for the establishment of the department of personnel and the appointment of a director of personnel and further:

“The Director of Personnel shall issue personnel rules with the approval of the Personnel Board. Prior to the effective date of such rules, the Director of Personnel shall give public notice in one or more newspapers of general circulation, and in no case shall such publication be less than ten (10) days before the effective date of the proposed rule or amendment to the rule. Such public notice shall include information concerning where the rules can be reviewed and where comments may be directed. *** The rules shall provide:
* * *
(7) For probationary periods after original appointment not to exceed one year.”

On January 14, 1976, the director of the department of personnel proposed to amend certain of the rules of the department of personnel. As amended, Personnel Rule IV, paragraph 5, read in part:

“Probation. *** Any person appointed from a career service original entrance eligible list will serve a probationary period determined by the Director. Such probationary period shall in no case exceed one year from the date of original appointment.”

On January 30, 1976, the director of personnel issued a memorandum which read:

“In accordance with Chapter 25.1 — 5 of the Municipal Code and the Rules of the Department of Personnel, the probationary period for all persons appointed from an original entrance eligible list into the Career Service on and after January 1, 1976, shall be for a period of one year.”

In his complaint plaintiff sought injunctive relief, reinstatement and back pay. He alleged that failure to grant him a hearing deprived him of due process and violated provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 1 — 1—1 et seq.). The circuit court held that under the ordinance and the rule promulgated by the director of personnel plaintiff was subject to a probationary period of one year and that his discharge without a hearing was not improper. The appellate court, holding that the rule was not properly promulgated and did not serve to extend the probationary period for police officers, reversed.

Defendants contend here that the decision of the appellate court was based on the erroneous conclusion that publication of notice of the extension of the probationary period from 9 months to 1 year occurred for the first time on November 21, 1977. (See 66 Ill. App. 3d 338, 341.) They have attached to their brief and ask that this court take judicial notice of a certificate showing that on January 19, 1976, there was a publication, which met the requirements of the ordinance, in a newspaper published in the city of Chicago. Section 1 of “An Act in relation to judicial notice” (Ill. Rev. Stat. 1977, ch. 51, par. 48a) requires that the circuit court take judicial notice of all general ordinances of the municipal corporations within the circuit, and section 2 (Ill. Rev. Stat. 1977, ch. 51, par. 48b) provides that on review this court take judicial notice of all matters of which the circuit court was required to take judicial notice. It would appear that a reasonable interpretation of these sections would require that we take notice of rules promulgated in accordance with the provisions of a municipal ordinance and of the certificates evidencing their publication.

Defendants argue that the memorandum effected the extension of the probationary period to a period of 1 year and that it was issued in compliance with the requirement of the ordinance that publication be made not less than 10 days before the effective date of a proposed rule or an amendment thereto. Plaintiff argues that acceptance of the defendants’ position would lead to unfair and irrational results. He contends that if the director of personnel is permitted to enact rules by means of unpublished memoranda specifying the length of a probationary period, changes could be made on a day-to-day basis presumptively without publication and applicable not only to different classes, but to specific employees.

The authority of the director of personnel to issue personnel rules is conferred by the ordinance, and its exercise must be in compliance with its provisions. The purported amendment to section 5 of Rule IV published on January 19, 1976, contained only the language of the ordinance and made no specific provision for the length of probationary periods after original appointment.

We are of the opinion that the publication on January 19, 1976, did not serve to effectuate the change in the probationary period applicable to plaintiff. The language of the ordinance should be given its plain meaning unless to do so would defeat its intent. (City of Chicago v. Pennsylvania R.R. Co. (1968), 41 Ill. 2d 245; City of East St. Louis v. Union Electric Co. (1967), 37 Ill. 2d 537; cert. denied (1968), 390 U.S. 948, 19 L. Ed. 2d 1136, 88 S. Ct. 1034.) The ordinance provides for the adoption of rules which fix probationary periods, subject to the limitation that they not exceed 1 year. It also provides that the “public notice shall include information concerning where the rules can be reviewed and where comments may be directed ***.” The obvious reason for this provision in the ordinance is that the publication be seen by persons likely to be affected by the proposed rules and that they be given an opportunity to comment thereon. The publication here gave no notice of the intent to provide by rule that all probationary periods would be extended to 1 year and defeated the purpose of the publication provision of the ordinance.

We conclude, therefore, that the purported rule change did not become effective prior to the completion of plaintiff’s probationary period, and the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51762.
    RICHARD JOHNSON, Appellant, v. GAYLE FRANZEN, Director of Corrections, Appellee.

      Opinion filed November 21, 1979.

      Wendy Meltzer, of the Legal Assistance Foundation, and James B. Haddad, of the Northwestern Legal Assistance Clinic, of Chicago, for appellant.

      William J. Scott, Attorney General, of Springfield (Joseph Moscov, Special Assistant Attorney General, of Chicago, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Richard Johnson, was convicted of a criminal offense and on June 10, 1977, received an indeterminate sentence of eight years to eight years and one day. On September 6, 1978, plaintiff filed the instant civil action against defendant, the Director of the Department of Corrections (Director), in the circuit court of Cook County seeking, in counts I and II of his complaint, mandamus and declaratory and injunctive relief. The claim for relief arises from the refusal by the Department of Corrections (Department) to apply to plaintiff and others similarly situated the day-for-day good-conduct-credit formula established by the amended good-conduct-credit provision of the Unified Code of Corrections which became effective on February 1, 1978 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 6—3). Plaintiff brought counts I and II as a class action on behalf of himself and all other persons serving indeterminate sentences who would benefit from the amended provision. Count III was brought in plaintiff’s individual capacity and alleged a denial of equal protection under the Illinois and United States constitutions as a consequence of the Department’s, refusal to award him compensatory good-conduct credits (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 12—5) for time he spent serving his Illinois sentence in a Federal penitentiary (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-6(e)). The circuit court allowed the Director’s motion to dismiss plaintiff’s complaint for failure to state a cause of action, and we allowed plaintiff’s motion for direct appeal under Rule 302(b) (58 Ill. 2d R. 302(b)).

A review of the recent statutory history of sentencing in Illinois and the application of good-conduct credits to sentence terms is necessary for an understanding of the contentions raised here. Until February 1, 1978, Illinois had a system of indeterminate sentences in which those committed to the Department of Corrections for commission of a felony were sentenced to minimum and maximum terms of imprisonment (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1). Good-conduct credits were applied to the minimum term to advance the date of parole eligibility and to the maximum to advance the date beyond which a prisoner could not be incarcerated. The Department was required to prescribe, at a rate within its discretion, a schedule of good-conduct credits for good behavior (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 6—3). These were known as “statutory good time credits.” The Department was also empowered to award good-conduct credits to prisoners who performed work assignments or participated in other Department programs (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 12—5). These credits were known as “compensatory good time credits.”

Effective February 1, 1978, the General Assembly amended the Unified Code of Corrections (Code) and replaced in some instances the indeterminate sentencing system with a fixed or determinate sentencing system (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—1). The Code no longer gives the Department authority to award compensatory good-conduct credits (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 12—5) and no longer gives the Department the authority to award statutory good-time credit at a discretionary rate (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 6—3). The Code expressly directs the Department to prescribe rules and regulations providing for good-conduct credits on a day-for-day basis. Amended section 3 — 6—3 provides:

“(a)(1) The Department of Corrections shall prescribe rules and regulations for the early release on account of good conduct of persons committed to the Department which shall be subject to review by the Prisoner Review Board.
(2) Such rules and regulations shall provide that the prisoner shall receive one day of good conduct credit for each day of service in prison for all classes of felonies other than where a sentence of ‘natural life’ has been imposed. Each day of good conduct credit shall reduce by one day the inmate’s period of incarceration set by the court.” (Emphasis added.) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003-6-3(a)(l), (2).)

Amended section 5 — 8—7(b) prescribes the scope of the application of the day-for-day formula. It provides:

“The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed, at the rate specified in Section 3 — 6—3 of this Code.” (Emphasis added.) Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—7(b).

After the amended code came into effect, the Department promulgated a regulation which authorized day-for-day good-conduct credit for persons serving determinate sentences but refused to apply the day-for-day formula to the maximum and minimum terms of those serving indeterminate sentences. The Department promulgated new regulations which continued to apply to indeterminate sentences the old system of “statutory good time,” which provided for less than day-for-day credit, and the system of “compensatory good time,” which provided a maximum credit of IVi days per month.

The first issue presented to us is whether and to what extent the day-for-day good-conduct-credit formula applies to plaintiff, who was convicted and sentenced to an indeterminate prison term before the effective date of the amended good-conduct-credit provision and who would benefit from the day-for-day formula. Since plaintiff’s complaint was dismissed for failure to state a cause of action before the circuit court reached the class-certification issues, we need not reach the issue of whether plaintiff may properly represent the entire class on whose behalf he seeks to bring this action.

Plaintiff contends that he is entitled to day-for-day good-conduct credits, instead of the less beneficial statutory and compensatory good-conduct credits, for time served after the effective date of the day-for-day provision and also for time served prior to the effective date. We agree that plaintiff is entitled to day-for-day credit for time served after the effective date of the day-for-day formula but do not agree that he is entitled to such credit for time served prior to the effective date.

It is clear from the express statutory language that after February 1, 1978, a day-for-day good-conduct-credit system was established in Illinois and that the new system applies to both determinate and indeterminate sentences. Amended section 3 — 6—3 of the Code directs the Department to promulgate rules and regulations which provide for day-for-day good-conduct credit (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 6—3), and there is no authority in the amended code for the Department to promulgate rules providing for less than day-for-day credit. Section 5 — 8—7 provides that prisoners are to be given day-for-day credit on the maximum term and minimum period of imprisonment (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—7(b)), and only indeterminate sentences have maximum and minimum terms (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1). To hold that the amended good-conduct credit provisions do not apply to indeterminate sentences would be to improperly ignore the express language of section 5 — 8—7 (People v. Lutz (1978), 73 Ill. 2d 204, 212-13). In light of the clear legislative pronouncements (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194), we can reach no other conclusion than that plaintiff is entitled to day-for-day good-conduct credits for time served after February 1, 1978.

Because the General Assembly has clearly expressed its intent to establish as of February 1, 1978, a day-for-day good-conduct-credit system applicable to those serving indeterminate sentences, there is no need to engage in statutory construction to determine whether plaintiff is entitled to day-for-day credit as of that date. We have nevertheless examined the. Director’s arguments and citations and find that they do not support his contention that the day-for-day formula is inapplicable to time served after February 1, 1978.

The Director cites amended section 8 — 2—4(b) of the Code (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1008 — 2—4(b)), which prohibits those sentenced prior to February 1, 1978, from electing to be resentenced by the trial court under the amended code. That provision has no bearing on whether the day-for-day good-conduct-credit formula applies to those serving indeterminate sentences on the effective date of the amended good-conduct-credit provision. The purpose of section 8 — 2—4(b) is to avoid numerous applications to the circuit court for resentencing. (People v. Grant (1978), 71 Ill. 2d 551, 561-62.) Application of the day-for-day good-conduct-credit system as of its effective date does not create problems similar to those section 8 — 2—4(b) seeks to avoid since resentencing by the circuit court is not involved.

Section 8 — 2—4(b) also provides that a defendant who had not been sentenced before February 1, 1978, may elect to be sentenced to either an indeterminate sentence under the law as it existed at the time of his offense or to a determinate sentence under the amended code. The election of an indeterminate sentence under section 8 — 2—4(b) serves to place those making the election in the same position as those who were sentenced prior to February 1, 1978. To assume that the mandate to apply the day-for-day formula to indeterminate sentences applies only to those electing indeterminate sentences after February 1, 1978, would undermine that purpose. Furthermore, to limit the application of the day-for-day formula to those electing indeterminate sentences after February 1, 1978, would create a dual system of good-conduct credits applicable to those serving indeterminate sentences without any provision for such a dual system in the good-conduct-credit sections of the Code. We note that plaintiff argues and that the Department’s regulations seem to indicate that the Department gives good-conduct credit on the same basis to all who are serving indeterminate sentences without regard to when the sentence was imposed but that in no instance does the Department give day-for-day credit to anyone serving an indeterminate sentence. A total refusal to grant day-for-day credit to those serving indeterminate sentences ignores the express statutory language providing for such credit.

The Director also cites section 3 — 3—2.1 of the Code, which first became effective on February 1, 1978. That section provides a means for those sentenced to indeterminate sentences under prior law to elect a fixed release date after their first parole hearing following February 1, 1978 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 3—2.1; see also Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 3—2(a)(5)). The Director contends that the only persons sentenced to indeterminate sentences who are entitled to day-for-day credit are those who have elected a fixed release date. Section 3 — 3—2.1 indicates that the day-for-day good-conduct-credit formula is not limited to those electing a fixed release date. Those receiving a fixed release date may “continue to accumulate good conduct credits at the maximum rate” provided under the recently enacted law. (Emphasis added.) (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1003 — 3—2.1(c).) Thus the Director’s contention that the day-for-day formula applies only to those who elect the fixed release date is inconsistent with section 3 — 3—2.1. His position is also inconsistent with the express mandate of section 5 — 8—7. That section provides for the application of day-for-day credits to maximum and minimum terms, as well as to determinate sentences. One who elects a fixed release date no longer has a maximum or minimum term but has a fixed term. Therefore to say that the only persons sentenced to indeterminate terms who may receive day-for-day credits are those who have exchanged their indeterminate sentences for fixed release dates is to ignore that section 5 — 8—7 applies to minimum and maximum terms.

The Director argues that section 4 of “An Act to revise the law in relation to the construction of the statutes,” which provides that new laws should not be construed to apply retroactively to affect “any penalty, forfeiture or punishment” (Ill. Rev. Stat. 1977, ch. 131, par. 4), bars application of the day-for-day formula to plaintiff after February 1, 1978. That section has no bearing where, as here, the General Assembly has clearly expressed its intention to establish a day-for-day good-conduct-credit system effective February 1, 1978. People ex rel. Johnson v. Pate (1961), 23 Ill. 2d 409, 411.

We agree with the Director’s contention that plaintiff is not entitled to day-for-day credit for time spent in custody prior to the effective date of the amended good-conduct-credit system. Although the General Assembly clearly established a day-for-day good-conduct-credit system as of February 1, 1978, there is no clear statutory indication that the day-for-day formula applies retroactively to time spent in custody before the effective date of the amended system. ' Nor is there any statutory indication that the General Assembly contemplated or authorized the extensive recalculation of good-conduct credits for all prisoners serving time on February 1, 1978, which the retroactive application of the day-for-day formula would require. Absent such a clear legislative intention (In re Estate of Krotzsch (1975), 60 Ill. 2d 342, 345; Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 24), we will not hold that the day-for-day formula applies to time served prior to February 1, 1978.

In sum, we hold that the circuit court erred in dismissing counts I and II of plaintiff’s complaint in their entirety. From February 1, 1978, forward, plaintiff is entitled to one day of good-conduct credit for each day served to the extent his prison conduct merits the award of credits. The credits are to be applied to the minimum and maximum terms. For time served prior to February 1, 1978, plaintiff is entitled to the statutory and compensatory good-time credits to which he was entitled under the old good-conduct-credit system.

Plaintiff’s final contention is that he was denied equal protection under both the Illinois and United States constitutions by the Department’s refusal to award him compensatory good-time credit for time spent serving his Illinois sentence in a Federal penitentiary (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—6(e)).' Plaintiff is now in the Department’s custody. We address this final contention because we have held that good-conduct credit for time served prior to February 1, 1978, must be calculated under the system of statutory and compensatory credit in effect before that date. Plaintiff’s complaint alleges that although there is a theoretical difference between statutory and compensatory good time, the Department in fact awards both types of credit on the same basis, i.e., for good behavior. The Department awards statutory good time both to those who are in the Department’s custody and, on the basis of Federal records, to those who are in Federal custody. However, the Department awards compensatory good time only to those in its custody.

Since this issue has arisen on a motion to dismiss, we must accept all the facts well pleaded by plaintiff as true. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329.) If the allegations in plaintiff’s complaint are taken as true, the Department’s refusal to award compensatory good time to those in Federal prison is purely arbitrary. Since plaintiff’s complaint presents no reasonable basis for the Department’s refusal to grant compensatory good time, plaintiff has stated a cause of action for denial of equal protection (People v. Grant (1978), 71 Ill. 2d 551, 561-62; People v. Sherman (1974), 57 Ill. 2d 1, 4-5). The Director’s contention that the Department’s refusal to grant compensatory good time does not violate equal protection since it is based on the rational ground that compensatory good time is awarded only for participation in rehabilitation programs, except in certain limited situations, and that the Department cannot evaluate a Federal inmate’s conduct and response to Federal programs (McGinnis v. Royster (1973), 410 U.S. 263, 277, 35 L. Ed. 2d 282, 292-93, 93 S. Ct. 1055, 1063) is not properly reached on a motion to dismiss and therefore will not be addressed here.

For the reasons stated, the judgment of the circuit court dismissing plaintiff’s complaint for failure to state a cause of action is reversed. The cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    (No. 51818.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MITCHELL KELLOGG, Appellee.

      Opinion filed November 21, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr, Mary Ellen Dienes and Thomas L. Brucker, Assistant State’s Attorneys, of counsel), for the People.

      James J. Doherty, Public Defender, of Chicago (John F. Westley and Marc Fogelberg, Assistant Public Defenders, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant, Mitchell Kellogg, was convicted of armed robbery and sentenced to a period of 4 to 8 years in the penitentiary. The sole question on review is whether the response of a juror, during the polling of the jury, cast doubt on the unanimity of the verdict. The appellate court reversed the trial court and found that the court’s questioning of one juror deprived her of an opportunity to dissent. (68 Ill. App. 3d 456.) This court granted leave to appeal. 65 Ill. 2d R. 315.

A guilty verdict signed by all the jurors was returned by the jury. After the verdict was read, the jury was polled. Each juror was asked, “Was this then and is this now your verdict?” Eleven jurors replied in the affirmative. The following colloquy occurred between the court and the remaining juror:

“THE CLERK: Susan M. Vesecky, was this then and is this now your verdict?
JUROR VESECKY: Yes. Can I change my vote?
THE COURT: The question is, was this then and is this now your verdict?
JUROR VESECKY: (No response.)
THE COURT: Was this then and is this now your verdict?
JUROR VESECKY: Yes, Sir.”

In People v. Preston (1979), 76 Ill. 2d 274, this court referred to the appellate court’s holding in the present case and distinguished the opportunity the juror in this case had to voice a dissent from that which this court approved in Preston. We now affirm the judgment of the appellate court.

When a jury is polled, each juror should be questioned individually as to whether the announced verdict is his own. The poll should be conducted so as to obtain an unequivocal expression from each juror. (ABA Standards, Trial by Jury, sec. 5.5 (1968).) The very purpose of the formality of polling is to afford the juror, before the verdict is recorded, an opportunity for “free expression unhampered by the fears or the errors which may have attended the private proceedings” of the jury room. (8 Wigmore, Evidence sec. 2355, at 717 (rev. ed. 1961).) In conducting the poll, each juror should be examined to make sure that he truly assents to the verdict. See Annot., 25 A.L.R.3d 1151 (1969).

The trial court may use its discretion in selecting the specific form of question to be asked in the polling process as long as a juror is given the opportunity to dissent. The double-barreled question used in this case, “Was this then and is this now your verdict?” has often been used in Illinois. (See People ex rel. Lane v. Pate (1968), 39 Ill. 2d 115.) We see nothing wrong with using this question in polling the jury. However, if a juror indicates some hesitancy or ambivalence in his answer, then it is the trial judge’s duty to ascertain the juror’s present intent by affording the juror the opportunity to make an unambiguous reply as to his present state of mind. (People v. Preston (1979), 76 Ill. 2d 274.) Jurors must be able to express disagreement during the poll or else the polling process would be a farce and the jurors would be bound by their signatures on the verdict. Before the final verdict is recorded, a juror has the right to inform the court that a mistake has been made, or to ask that the jury be permitted to reconsider its verdict, or to express disagreement with the verdict returned. If the trial judge determines that any juror does dissent from the verdict submitted to the court, then the proper remedy is for the trial court, on its own motion if necessary, to either direct the jury to retire for further deliberations (Martin v. Morelock (1863), 32 Ill. 485), or to discharge it (ABA Standards, Trial by Jury sec. 5.5 (1968)).

In attempting to determine the juror’s present intent during the poll, the trial court judge must be careful not to make the polling process another arena for deliberations. However, an opportunity must be afforded for the juror to express his opinion free from coercive influences that may have dominated the deliberations of the jury room. It is a matter for the trial judge to determine whether a juror has freely assented to the verdict. The trial judge not only hears the juror’s response, but he can observe the juror’s demeanor and tone of voice. (People v. Superior Court (1967), 67 Cal. 2d 929, 434 P.2d 623, 64 Cal. Rptr. 327; Commonwealth ex rel. Ryan v. Banmiller (1960), 400 Pa. 326, 162 A. 2d 354.) However, the trial judge’s determination is subject to review, and a verdict cannot stand if the interrogation precludes the opportunity to dissent or if the record reflects that the juror in the poll has not in fact assented to the verdict.

In conducting the poll, the judge must keep in mind that the “ ‘influence of the trial judge on the jury is necessarily and properly of great weight’ ” and that “jurors are ever watchful of the words that fall from him.” (Bollenbach v. United States (1946), 326 U.S. 607,612, 90 L. Ed. 350, 354, 66 S. Ct. 402, 405.) Thus the judge, in posing questions to a juror during the poll, must carefully avoid the possibility of influencing or coercing the juror. In the case at bar, Susan Vesecky was the youngest juror, 21 years old. When asked by the clerk, “Was this then and is this now your verdict?” she stated yes, but then asked the court if she could change her mind. The judge did not answer her question, but rather repeated the prior question twice to her until she gave an affirmative answer.

It is difficult to assess the impact of the judge’s interrogation, his refusal to address himself to the question the juror asked — “Can I change my vote?” — and the double-barreled question which he insisted be answered. Although we cannot say from the record that the juror was coerced, we also cannot say that the conduct of the judge — a man in a position of authority, who was many years the juror’s senior — would not compel the “Yes, Sir” response. This answer was given to a question that referred to the juror’s state of mind in the jury room when she signed the verdict, as well as to her state of mind when the poll was being conducted after she would have been freed from the influences of the jury-room environment. When her ambiguous response as to her present assent to the verdict was given, the court should have focused on her feeling as to the verdict returned. This he did not do and we cannot ascertain from her answer whether or not she adhered to the verdict she had signed. Absent some response that raises a question as to the juror’s present intent, such a dual question is appropriate; however, the response “Can I change my vote?” indicates that the juror had some reluctance to abide by the verdict. This was more than a rhetorical question. The response she gave after the judge twice repeated the same question was not different from the response she had previously given. However, the judge did not ascertain if it was her desire to change her vote as she had asked, or whether she desired to abide by the verdict she had signed. The record does not therefore reflect that the verdict of guilty was a unanimous verdict.

In this case defense counsel made no objection to the court’s interrogation of the juror prior to the entry of judgment. The question was raised by the defendant in his post-trial motion. Had the objection been made before the jury was discharged, the court might have been able to correct its mistake by asking appropriate questions, or by sending the jury back to the jury room for further deliberations. Counsel’s failure to make a timely objection has necessitated a review by the appellate court, a review by this court, and a new trial in the trial court, all of which might have been avoided. We view this as a needless waste of judicial time. However, since the failure to object has not been raised by the State in this court, we need not consider this matter beyond the observations just voiced.

For the reasons given above, the judgment of the appellate court is affirmed.

Judgment affirmed.