author: JUSTICE CLARK

text:
    (No. 54516.
    SAWYER REALTY GROUP, INC., et al., Appellants, v. JARVIS CORPORATION et al., Appellees.

      Opinion filed February 2, 1982.
    Rehearing denied March 25, 1982.

      Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago (N. A. Giambalvo and Martha L. Ashenhurst, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (Robert A. Knuti and Thomas C. Walsh, of counsel), for appellees Reed Beidler et al.

    Ruben, Kaplan & Rosen, of Skokie (Bernard M. Kaplan, of counsel), for appellees Abel R. Kaplan and Green-leaf Realty Management Co., Inc.
   JUSTICE CLARK

delivered the opinion of the court:

The plaintiffs, Sawyer Realty Group, Inc., et al., asserted a claim against the defendants based on an alleged violation of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1977, ch. 111, par. 5701 et seq.; hereinafter referred to as the Brokers Licensing Act). Any claim against the named defendants Harris Trust and Savings Bank, La Salle National Bank, Jarvis Corporation, Continental Illinois National Bank and Trust Company of Chicago, and Pacific Mutual Life Insurance Company, as owners, or in any other capacity as interested parties, is not at issue here. The question for review involves count I of the plaintiffs’ complaint concerning the alleged conduct of defendants Reid L. Beidler, Abel R. Kaplan, Lark Management Company, and Greenleaf Realty Management Company, Inc. (hereinafter referred to as defendants), who are real estate brokers licensed under the Brokers Licensing Act. The owners of a certain piece of real estate situated in the city of Chicago listed the property with these defendants for sale. According to the complaint, the plaintiffs, as prospective purchasers, negotiated with the defendants for the purchase of the property. The negotiations began in November of 1978 and continued over a period of several months, ending in August of 1979. An offer of $1,675,000 dated June 4, 1979, together with an earnest money deposit of $50,000, was submitted to the defendants. Count I of the plaintiffs’ complaint asserts that approximately 10 days later the offer and earnest money were returned and at that time the defendants informed the plaintiffs that the owners had sold the property to “others.” Count I further asserts that shortly thereafter the plaintiffs learned from “other sources” that the property was purchased by one or both of the defendants Beidler and Kaplan, and that defendants Beidler, Kaplan, Lark, and Greenleaf made misrepresentations to and concealed information from the plaintiffs. The plaintiffs claimed that the defendants’ conduct violated rules and regulations promulgated under the Brokers Licensing Act by the Department of Registration and Education pursuant to provisions of the Act. The trial court dismissed count I of the plaintiffs’ complaint, which asked the circuit court of Cook County to imply a private right of action for compensatory damages. The appellate court affirmed the ruling of the trial court. (91 Ill. App. 3d 1134.) We granted plaintiffs’ petition for leave to appeal from that judgment.

A motion to dismiss pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 45) admits all facts well pleaded. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 96.) The action should not be dismissed unless it is apparent that no set of facts could be proved that would entitle the plaintiffs to relief. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298; Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill. 2d 128.) The plaintiffs claim that the defendants purchased the property from the owner on terms less favorable than those offered by the plaintiffs. Thus for the purpose of judging the adequacy of count I of the plaintiffs’ complaint, we must accept that factual allegation as true.

Section 8(a) of the Brokers Licensing Act empowers the Department of Registration and Education to make and enforce reasonable regulations in connection with the issuance, revocation and suspension of a broker’s certificate (Ill. Rev. Stat. 1977, ch. 111, par. 5715(a)). The Department may suspend or revoke a certificate of registration or censure a registrant (Ill. Rev. Stat. 1977, ch. 111, par. 5732), where the registered broker is found guilty (Ill. Rev. Stat. 1977, ch. 111, par. 5732(e)) of violating published regulations promulgated by the Department to enforce the Act (Ill. Rev. Stat. 1977, ch. 111, par. 5732(e)(21)).

The Department published revised regulations in 1979. Included in that publication were rules V(A) and (C):

“V. Disclosure
(A) A registrant shall disclose to any and all purchasers, prospective purchasers, lessors or lessees and to any and all sellers, or prospective sellers, or parties to an exchange, any and all material knowledge he may have as soon as it may be practical for him so to do. This rule shall not be construed to require a registrant to violate his duties under the laws of agency.
***
(C) A registrant shall disclose to all parties in any transaction, in writing, any and all interest he or it does or may have as an owner, purchaser, seller, renter, or lessor, or otherwise in the real estate constituting the subject matter thereof or in such transaction, directly or indirectly.” (Department of Registration and Education Rules and Regulations Promulgated for the Administration of the Real Estate Brokers and Salesmen License Act (1979 rev. ed.).)

These rules were duly promulgated pursuant to statutory authority. As such they have the same force and effect as the statute. (Brown v. Sexner (1980), 85 Ill. App. 3d 139; Williams v. New York Central R.R. Co. (1949), 402 Ill. 494, 501; B. Schwartz, Administrative Law sec. 59, at 157 (1976); United States v. Mersky (1960), 361 U.S. 431, 437-38, 4 L. Ed. 2d 423, 429, 80 S. Ct. 459, 463.) These substantive promulgations drafted pursuant to the express language of the Brokers Licensing Act are accorded as much weight as the language the General Assembly used in defining other violations. People ex rel. Colletti v. Pate (1964), 31 Ill. 2d 354, 359.

For the purposes of this appeal we accept as true the plaintiffs’ assertions that they relied upon the advice, recommendations and suggestions of defendants in the preparation of their offer to purchase. If, as alleged, the defendants dealt with the plaintiffs while secretly in a position personally adverse to and in conflict with that of plaintiffs and concealed material facts in failing to communicate their personal interest to purchase the property for themselves, then such actions on the part of the defendants constitute violations of sections V(A) and (C) of the rules and regulations promulgated by the Department of Registration and Education pursuant to the Act.

A broker’s relationship to his employer is one of principal-agent. (Georgacopulos v. Hruby (1925), 316 Ill. 439; City of Chicago v. Barnett (1949), 404 Ill. 136; Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867.) That fiduciary relationship of principal and agent requires full disclosure. (Moehling v. W. E. O’Neil Construction Co. (1960), 20 Ill. 2d 255.) In 1928 this court held that in the absence of such a relationship there is no duty to disclose material facts. (Fish v. Teninga (1928), 330 Ill. 160.) That holding is no longer viable. The primary fiduciary duties that run from the broker to the seller are not undermined by the obligation the broker owes to the prospective buyer. (See Bliesener v. Baird & Warner, Inc. (1967), 88 Ill. App. 2d 383; Duffy v. Setchell (1976), 38 Ill. App. 3d 146; Harper v. Adametz (1955), 142 Conn. 218, 222-23, 113 A.2d 136, 139; United Homes, Inc. v. Moss (Fla. App. 1963), 154 So. 2d 351.) Real estate brokers occupy a position of trust with respect to the purchasers with whom they are negotiating. Brokers owe a corresponding duty to exercise good faith and disclose any personal interest they have in property they list for sale. (See Funk v. Tifft (9th Cir. 1975), 515 F.2d 23, 25.) That duty is reflected in the General Assembly’s imposition of enforceable obligations upon licensed brokers and salesmen. If the defendants failed to disclose their self-interest, they violated Rules V(A) and V(C) promulgated by the Department, pursuant to express statutory authority. But whether the legislature intended to enforce those obligations through private litigation under any section of this act is a separate question.

It is clear that it is not necessary to show a specific legislative intent to create a private right of action. If there is no indication that the remedies available are only those the legislature expressed in the Act, then where it is consistent with the underlying purpose of the Act and necessary to achieve the aim of the legislation, a private right of action can be implied. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172; Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21.) The court looks to the totality of circumstances in endeavoring to discover legislative intent. Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93.

We agree with the plaintiffs’ assertion that when a statute is enacted to protect a particular class of individuals, courts may imply a private cause of action for a violation of that statute although no express remedy had been provided. (Rice v. Snarlin, Inc. (1970), 131 Ill. App. 2d 434; Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152; Montague v. George J. London Memorial Hospital (1979), 78 Ill. App. 3d 298, 301-03.) The public policy underlying certain statutes demands implication of a private remedy to compensate an aggrieved individual belonging to that class of persons whom the statute was designed to protect.

The terms of section 17—15 of the Election Code (Ill. Rev. Stat. 1951, ch. 46, par. 17—15) allowed any employee to excuse himself from his place of employment without a penalty or deduction in salary to vote. The court in Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, found it necessary to imply a private right of action to allow plaintiffs to recover wages deducted by their employer for the time they were absent from work. 6 Ill. 2d 152, 154.

In Boyer v. Atchison, Topeka & Santa Fe Ry. Co. (1967), 38 Ill. 2d 31, 35, we implied a private right of action in Illinois under the Federal Safety Appliance Act. The court relied upon the United States Supreme Court’s decision in O’Donnell v. Elgin, Joliet & Eastern Ry. Co. (1949), 338 U.S. 384, 94 L. Ed. 187, 70 S. Ct. 200, that said that the failure of equipment to perform, standing alone, was itself an actionable wrong under the Act. (338 U.S. 384, 390, 94 L. Ed. 187, 192, 70 S. Ct. 200, 204.) The intent of the Act was to substitute a statutory for a common law duty and impose absolute liability for a violation of the safety code. It was necessary to ensure the safe operation of trains that a private right of action exist to compensate those injured as a result of the operation of defective car couplers. 38 Ill. 2d 31, 37-38.

Consideration of the underlying policy of the legislation and the overriding purpose of each act is important, in determining whether a private right of action exists absent specific statutory authority. In examining the public policy behind the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.), this court implied a private right of action, allowing a civil remedy for damages where an employer discharged an employee for exercising his workmen’s compensation rights. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.) The court could not accept a statutory construction that would effectively “put employees in a position of choosing between their jobs and seeking their remedies under the Act. *** [T] o prevent such anomalous results it is necessary to allow an action for retaliatory discharge.” (74 Ill. 2d 172, 184.) This court in Kelsay found it necessary to effectuate the purpose of the Workmen’s Compensation Act to imply a private right of action.

The appellate court relies upon, and both petitioner and respondent speak to, the United States Supreme Court holdings concerning implied private rights of action. The issue of implied private rights with regard to Federal legislation has been addressed by the United States Supreme Court on a number of occasions within the past two years. The court has determined that the key to its inquiry is legislative intent. Texas Industries, Inc. v. Radcliff Materials, Inc. (1981), 451 U.S. 630, 68 L. Ed. 2d 500, 101 S. Ct. 2061; California v. Sierra Club (1981), 451 U.S. 287, 68 L. Ed. 2d 101, 101 S. Ct. 1775; Universities Research Association, Inc. v. Coutu (1981), 450 U.S. 754, 67 L. Ed. 2d 662, 101 S. Ct. 1451; Transamerica Mortgage Advisors, Inc. v. Lewis (1979), 444 U.S. 11, 15, 62 L. Ed. 2d 146, 152, 100 S. Ct. 242, 245; Touche Ross & Co. v. Redington (1979), 442 U.S. 560, 568, 61 L. Ed. 2d 82, 91, 99 S. Ct. 2479, 2485.

This standard evolved from a test first articulated in Cort v. Ash (1975), 422 U.S. 66, 78, 45 L. Ed. 2d 26, 36-37, 95 S. Ct. 2080, 2088, where the Supreme Court examined four factors: (1) Is the plaintiff one of a class for whose especial benefit the statute was enacted? (2) Is there any indication of legislative intent to create or deny such a remedy? (3) Is it consistent with the underlying purpose of the legislative scheme to imply such a remedy? (4) Is the cause of action traditionally allocated to State law? The test articulated in Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 29, is not dissimilar: (1) Does the violation alleged contravene the public policy of the State? (2) Are the plaintiffs within the class the statute was designed to protect? (3) Is the injury one the statute was designed to prevent? (4) Is the need for civil actions under the statute clear? (5) Is there any indication that remedies available are limited to those enumerated in the Act?

While the United States Supreme Court has become increasingly reluctant, in construing Federal legislation, to read a private remedy into an act where an express remedy is provided for (Transamerica Mortgage Advisors v. Lewis (1979), 444 U.S. 11, 19, 62 L. Ed. 2d 146, 154-55, 100 S. Ct. 242, 247), our courts have continually demonstrated a willingness to imply a private remedy where there exists a clear need to effectuate the purpose of an act. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172; Boyer v. Atchison, Topeka & Santa Fe Ry. Co. (1967), 38 Ill. 2d 31; Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152; Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 29; Montague v. George J. London Memorial Hospital (1979), 78 Ill. App. 3d 298, 301-03.

Section 1 of the Brokers Licensing Act reads:

“The intent of the legislature in enacting this statute is to evaluate the competency of persons engaged in the real estate business for the protection of the public. (Ill. Rev. Stat. 1977, ch. 111, par. 5701.)

The plain purpose is to protect the public from incapable or dishonest persons who might aid in the perpetration of fraud by establishing qualifying standards for salesmen and brokers. The State licenses those who engage in a particular trade or practice a particular profession in order to compel them to do so honestly and with integrity, excluding those who are “incompetent” or “unworthy.” (Ranquist v. Stackler (1977), 55 Ill. App. 3d 545, 551. See also Kaplan v. Department of Registration & Education (1977), 46 Ill. App. 3d 968; People ex rel. State Board of Health v. Apfelbaum (1911), 251 Ill. 18.) The Act is a remedial one, and it should be broadly construed (McKey & Poague, Inc. v. Stackler (1978), 63 Ill. App. 3d 142). The emphasis is upon the evaluation of real estate brokers’ and salesmen’s fitness. (Ranquist v. Stackler (1977), 55 Ill. App. 3d 545, cert. denied (1978), 439 U.S. 926, 58 L. Ed. 2d 318, 99 S. Ct. 309.) The Real Estate Brokers and Salesmen License Act is a comprehensive licensing and registration statute designed to regulate real estate brokers and salesmen. The licensing system provides a number of methods to ensure the protection of the public in dealing with brokers and salesmen. Procedures and standards setting forth the necessary steps for qualification for a license are listed. (Ill. Rev. Stat. 1979, ch. 111, pars. 5726, 5727.) Standards for conducting business are prescribed in rules promulgated by the Department of Registration and Education and in specifically enumerated prohibited acts. (Ill. Rev. Stat. 1977, ch. 111, par. 5732.) Methods of enforcing those prescribed standards are provided. Ill. Rev. Stat. 1977, ch. 111, par. 5733 et seq.

The legislature also provided for certain private remedies. Under section 16(b) an aggrieved individual may file a complaint calling for an investigation by the Department of Registration and Education. (Ill. Rev. Stat. 1977, ch. 111, par. 5733(b).) Section 22 provides that a private individual may bring an action to enjoin certain unlawful activities. (Ill. Rev. Stat. 1977, ch. 111, par. 5740.) Section 8.1 establishes a real estate recovery fund which may be used to compensate aggrieved persons who are otherwise unable to satisfy valid judgments against registered real estate brokers and salesmen. (Ill. Rev. Stat. 1977, ch. 111, par. 5716.) We agree with the plaintiffs’ assertion that the maxim expressio unius est exclusio alterius— the mention of one thing implies the exclusion of another thing — is only an aid and “should not be used to defeat the apparent intention of the legislature.” (Lehman v. Hill (1953), 414 Ill. 173, 175.) Because the legislature provided for departmental enforcement does not necessarily mean that they must not have intended to create a private right of action. The existence of an express private remedy for indemnification of limited compensatory damages (up to $10,000 per aggrieved party for actual cash losses) indicates that the General Assembly considered that private civil actions for damages would be instituted for violations of this act. However, we do not believe that the lack of any language creating a private right of action for compensatory damages under any section of the Act indicates that the General Assembly rejected such a remedy.

The potential imposition of a criminal penalty under the Workmen’s Compensation Act did not preclude this court from implying a private right of action in alleviating the plight of the plaintiff in Kelsay. The sanctions provided for in the Brokers Licensing Act are of no help to the plaintiffs here. The express remedies available to the Sawyer Realty Group are inadequate to redress the injuries the plaintiffs have sustained.

The plaintiffs were members of the class for whose benefit the statute was enacted. Implication of a private right is consistent with the underlying purpose of the Act. The plaintiffs’ injury is one the statute was designed to prevent. Implication of a civil private right of action for compensatory damages under the Brokers Licensing Act is necessary to provide an adequate remedy for self-serving, deceptive and fraudulent practices of brokers and salesmen that the Act seeks to prevent. Given these circumstances we recognize an implied private right of action for damages.

The judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: JUSTICE WARD

license: Public Domain

text:
    (No. 54083.
    BOARD OF EDUCATION OF GOLF SCHOOL DISTRICT NO. 67, Appellant, v. REGIONAL BOARD OF SCHOOL TRUSTEES OF COOK COUNTY et al., Appellees.

      Opinion filed February 2, 1982.
    Rehearing denied March 25, 1982.

      SIMON, J., took no part.
    David P. Kula and John F. Ganna, of Anthony Scariano & Associates, P.C., of Chicago Heights, for appellant.
    Russell M. Pelton, Pat Chapin, and Craig A. Varga, of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

On December 29, 1978, a petition was filed by residents of Golf School District No. 67 with the Cook County Regional Board of School Trustees (Regional Board) to detach the village of Golf, the Golf Acres subdivision of the village of Glenview, and an area of commercial property from Golf School District No. 67 (District 67) and to attach the property to Glenview Community Consolidated School District No. 34 (District 34). The purpose was to permit children of the proposed detachment area to attend school in Glenview. The petition was signed by more than two-thirds of the registered voters in the detachment area, as required by statute (Ill. Rev. Stat. 1977, ch. 122, par. 7—1). On August 27, 1979, the Regional Board issued its findings of fact and granted the petition. On February 15, 1980, the circuit court of Cook County, on administrative review, affirmed the board’s decision granting the petition. It ordered that children residing in the detachment area in District 67 would have an election to attend District 34 schools pending appeal from the court’s order and that District 67 would be required to pay nonresident tuition for the detachment area students who chose to attend school in the annexing district. Upon appeal by District 67, the appellate court affirmed the portions of the circuit court’s order that granted the petition and ordered District 67 to pay nonresident tuition to District 34, but reversed that portion which permitted detachment-area children pending appeal to attend school in District 34. (88 Ill. App. 3d 121.) We granted District 67 leave to appeal. 73 Ill. 2d R. 315.

Twenty-four witnesses appeared before the Regional Board, and 97 exhibits were introduced into evidence. The evidence is set out in detail in the appellate court’s opinion (88 Ill. App. 3d 121, 123-27), and it will not be necessary to restate the evidence here. Based on the evidence, the Regional Board made findings, inter alia, that in considering the petition for detachment one must use a “whole child” concept in evaluating the effect on the children in the area proposed for detachment. One must consider whether children’s opportunities for participation in library, park district and other after-school programs, as well as school-time programs, will be enlarged; that consideration of the “whole child" concept in this case warrants granting the petition since the educational welfare of the detachment-area children would be improved; that the detachment area is part of an identifiable “community of interest” with the village of Glenview; that by consolidating its programs after detachment and by exercising its unutilized taxing power, District 67 would be able to maintain or improve the present quality of its educational programs and that detachment would have no significant adverse economic impact; that the safety of detachment-area children in traveling between school and their homes would be improved; that both districts would continue to be able to meet the standards of recognition prescribed by statute; and that the best interests of the schools in the area and the educational welfare of the public required that the petition be approved.

Here, as in the appellate court, District 67 argues that the Regional Board erred in considering the “whole child” and “community of interest” factors and contends that the findings of the Regional Board are against the manifest weight of the evidence.

It is, of course, the role of a regional board and not of the courts to make findings of fact, and its determinations and decisions will not be set aside on administrative review unless they are shown to be contrary to the manifest weight of the evidence. (School District No. 79 v. County Board of School Trustees (1954), 4 Ill. 2d 533.) The findings of a regional board on questions of fact are prima facie true and correct. (Zejmowicz v. County Board of School Trustees (1971), 133 Ill. App. 2d 735.) This court observed in School Directors of School District No. 82 v. Wolever (1962), 26 Ill. 2d 264, 268 that “[i] t must remain for local boards to weigh the relevant factors to determine the action best serving our entire education system. When the entire record indicates *** that the board has considered the applicable statutory standards and is supported in its conclusion by substantial evidence, its determination must be affirmed." It is not for a court to reweigh evidence or substitute its judgment for that of the Regional Board.

The standards to be considered by a regional board in determining whether to permit a transfer of land from one school district to another are set out in section 7—6 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 7—6). It provides:

“The *** board of school trustees shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted. ***”

Too, the benefit to the annexing district and the detachment area must clearly outweigh the detriment resulting to the detaching district and the surrounding community as a whole. Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190.

The “whole child" factor and the closely related “community of interest" factor are not improper considerations in determining the wisdom or unwisdom of shifting the boundaries of school districts. The former factor recognizes that extracurricular participation in social, religious and even commercial activities is important in a child’s development as a beneficial supplement to the child’s academic involvement. (School District No. 106 v. County Board of School Trustees (1964), 48 Ill. App. 2d 158.) Too, in annexation-application hearings it is proper to ascertain whether the petitioning area is identified with the school district and the community to which annexation is requested. If a child attends school in his natural community it enhances not only his educational opportunity but encourages his participation in social and other extracurricular activities that figure importantly in the “whole child” idea. The court in Burnidge v. County Board of School Trustees (1960), 25 Ill. App. 2d 503, 509-10, stated that more important than benefits of increased safety and savings in transportation costs and time “is the fact that an identification with a school district in a child’s natural community center will inevitably result in increased participation in school activities by the child and his parents. Such increased participation cannot but result in an improvement in the educational picture of the entire area.” The Review Board properly gave consideration to the whole-child and the community-of-interest factors in determining whether annexation should be allowed.

An examination of the record and the evidence which is set out in detail in the opinion of the appellate court show that the Regional Board properly considered the statutory standards under section 7—6 of the School Code and that the determination of the Board that annexation should be granted was not contrary to the manifest weight of the evidence. We judge that the record shows that the benefit which will be derived by the annexing district and the detachment area clearly outweighs the resulting detriment to the detaching district. See Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190.

District 67 argues, too, that the Regional Board’s action here compels the closing of a school, staff cuts, and program consolidations in District 67. It contends that such compulsion constitutes a usurpation of nondelegable discretionary powers of local school boards. While it is true that the responsibility for the control and supervision of school buildings, the hiring and firing of staff members, and the consolidation of school programs is vested solely in local school boards (Ill. Rev. Stat. 1977, ch. 122, pars. 10—20 through 10—22), it seems clear that the Regional Board did not usurp the function of the local school board. The Regional Board, in determining what effect redistricting would have on District 67, simply took into account the decision made by District 67 to close one of its schools and to reduce staff size. District 67 argues that its earlier announced decision to close one of its schools and reduce staff size was not to take place at once but at a later scheduled date. We do not, however, judge that the mere possibility that District 67 might seek to reverse its prior decision to close a school and reduce the size of its staff makes those decisions factors which the Regional Board was not permitted to consider in deciding the annexation application. The board’s assumption that District 67’s decision, made, one may assume, for good cause, would be carried out was not improper. The consideration by the Regional Board of a local school board’s announced decision and plans was not a usurpation of the local board’s function.

In Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, which has been referred to above, the statutory standards for the granting of a detachment petition were interpreted to require that “the benefit derived by the annexing and affected areas clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole.” (12 Ill. 2d 190, 193-94.) District 67 acknowledges that the record contains evidence that residents of the detachment area will benefit from redistricting, but it argues that the Regional Board was required to find also a benefit to District 34. District 67 contends that the board did not properly apply the standard described in Oakdale since it did not make a separate finding of benefit to District 34. District 67 says that Eble v. Hamilton (1977), 52 Ill. App. 3d 550, 553-54, in which the court stated that “[M] ere proof of no detriment to the losing district has been said to be insufficient to support a petition in the absence of an evident benefit,” supports its position.

Looking to the context of the court’s statement, one finds that in Eble the absence of a benefit to the annexing district was determinative because the only benefit that would have resulted from the proposed redistricting was the satisfaction of the personal preference of the petitioning parents and their child as to the school to be attended. Although the wishes or convenience of petitioning parents and their children is to be considered, more than the personal preference of petitioners must be shown to warrant a change in district boundaries. (Board of Education of Lovington Community Unit School District No. 303 v. Maycroft (1980), 86 Ill. App. 3d 1130.) The situation here is not as in Eble. The record shows that both of the school districts and the residents would receive benefits other than the mere convenience and personal preference of the petitioners. Students from the detachment area would benefit by improved safety conditions in traveling to and from school and by enhanced opportunities to participate in school, extracurricular, and community activities; District 67 and its students would benefit by being relieved of the overcrowding caused by the closing of one of its schools; District 34 would benefit from improved efficiency through the use of idle facilities and from the obvious benefit of an increase in tax revenues and added assessed valuation.

Contrary to the contention of District 67, the requirement described in Oakdale does not mandate a separate finding of benefit to District 34 by the Review Board independent of the benefit to the detachment area. Instead, it is the overall benefit to the annexing district and the detachment area considered together that “clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole.” (Emphasis added.) 12 Ill. 2d 190, 194.

District 67 argues that it will lose substantial amounts of tax revenue and assessed valuation if there is a detachment and asserts that the benefit to the detachment area cannot outweigh the financial detriment it will suffer.

It is obvious that with every detachment and annexation there is a resulting loss of assessed valuation and tax revenue to the district losing a portion of its territory. As the appellate court observed, loss is inevitable. This circumstance alone will not prevent redistricting if it appears that the maximum tax rate is not being levied by the detaching district. (Bowman v. County Board of School Trustees (1974), 16 Ill. App. 3d 1082; Calvert v. Board of Education (1963), 41 Ill. App. 2d 389.) The record indicates that District 67 is not levying its maximum authorized rate in several of its funds. Whether a detaching district will remain financially healthy and able to meet the statutory standards for recognition is more important than the size of the loss of tax revenues and assessed valuation the district must bear. (Cf. Board of Education v. Regional Board of School Trustees (1980), 82 Ill. App. 3d 1067.) The Regional Board received expert testimony that detachment would have no significant adverse effect on District 67 and that its ability to satisfy the statutory standards for recognition would not be jeopardized. The appellate court considered that the financial detriment to District 67 was insignificant.

In summary, we are in agreement with the appellate court’s conclusion that “the Board could have properly found that it is in the best interest of the schools in the area and the educational welfare of the pupils that the requested change in boundaries be granted” (88 Ill. App. 3d 121, 131).

The appellate court correctly held that the trial court’s order permitting detachment-area children to attend school in District 34 pending appeal, which was entered subsequent to the Regional Board’s order granting the detachment, violated section 7—7 of the School Code. The section in part provides that the “commencement of any action for review shall operate as a supersedeas, and no further proceedings shall be had until final disposition of such review.” (Ill. Rev. Stat. 1977, ch. 122, par. 7—7.) The obvious design of the section is to prevent confusion among students, school bodies and others affected and to avoid unnecessary complications in the expenditure of public funds. Although the appellate court reversed that part of the trial court’s order allowing the students to elect to attend school in District 34, it concluded that District 67 should pay nonresident tuition for students who elected to attend District 34 schools during the year the order was in effect. We judge that the appellate court’s affirmation of the tuition payment order was proper.

The appellate court’s reversal of the trial court’s order permitting detachment-area students to attend District 34 schools does not change the fact that District 34 absorbed the expense of educating those students who elected to transfer. (The record is not clear as to the number of detachment-area students who chose to attend District 34 schools during the 1979-80 school year.) District 34, in opening its doors to those students, was acting in accordance with the court’s order, and it would be manifestly inequitable if it were not compensated for the added expenses incurred. The legislature authorized the levying of taxes by boards of education in order to provide for the expense of educating children residing within their districts. When this expense is actually borne by another district, it is appropriate for the relieved district to reimburse the other district. Cf. Ill. Rev. Stat. 1977, ch. 122, par. 10—22.22.

If District 67 were not required to pay nonresident tuition, it might reap a windfall benefit since it had levied taxes to cover the educational cost of detachment-area students. Expert testimony showed that District 67 received at least $208,000 in tax revenues from the detachment area for the school year following the trial court’s order and that District 34’s costs were less than $2,000 per detachment-area student. Thus, even if all 55 detachment-area students had elected to attend District 34 schools for the year in question, after reimbursing District 34, District 67 would be left with detachment-area tax revenues in the neighborhood of $100,000 to cover its fixed expenses.

For the reasons stated, the judgment of the appellate court is affirmed. The cause is remanded to the circuit court of Cook County for a determination of the amount of nonresident tuition to be paid to District 34.

Affirmed and remanded, with directions.

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


author: JUSTICE UNDERWOOD

text:
    (No. 54954.
    BOB NEAL PONTIAC-TOYOTA, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Harris Thomas, Appellee).

      Opinion filed March 16, 1982.

      Goldberg, Fohrman & Weisman, Ltd., of Chicago (Howard J. Ansorge, of counsel), for appellant.
    J. Michael Madda, of Chicago (Mark P. Matranga, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

In this workmen’s compensation case, the arbitrator found that Harris Thomas (claimant) suffered accidental injuries on July 12, 1978, that arose, out of and in the course of his employment with Bob Neal Pontiac-Toyota, Inc. (respondent), and awarded him $186.67 per week for 24 2/7 weeks of temporary total disability, $186.67 per week for a further period of 126½ weeks for 35% permanent loss of use of the left hand and a fracture of a thoracic vertebra, and $1,529.37 for medical, surgical and hospital expenses. The Industrial Commission affirmed, and the circuit court of Cook County confirmed the Commission. Respondent appeals directly here pursuant to our Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)), urging that claimant’s status was that of an independent contractor rather than an employee at the time of the accident.

Claimant is a retired painter with some 40 years’ experience. Prior to his retirement in 1976, he was an employee of the Chicago Housing Authority for 15 years. During 1976 and 1977, he worked periodically for a decorating company for which he was paid the union scale of approximately $11 an hour. In May 1978 he began working for a general contractor, Phillip Jones, who was doing tuckpointing, roof work and other maintenance items for respondent at its showroom on South Stony Island Avenue in Chicago. Jones was apparently hired by respondent for a fixed price or lump sum to do a specified amount of work, it being Bob Neal’s testimony that Jones did not punch in and out on his time clock but agreed to do a “certain amount of work for a certain amount of money.” Jones in turn paid claimant an hourly union-scale wage to paint the exterior and interior of the wall that Jones had tuckpointed and the inside rafters. The work for which Jones had been hired was completed in three weeks. He was then informed by Bob Neal that there was additional painting that needed to be done. Jones, however, suggested that Neal deal with claimant directly. Neal testified that he met with claimant, told him that there was about a month’s work at the building that claimant had already worked on and that he could also work on a second building that needed to be scraped and painted. Neal was to provide the paint. There was no agreement or further discussion regarding how long claimant would work on the premises. Nor was there any definite understanding as to the amount of work that claimant would perform. It was agreed that claimant would be paid $7 per hour and that his adult son could assist him. He was to be paid an additional $3 per hour for the time that his son worked.

Claimant began working the morning after his conversation with Bob Neal. He testified that the ladder, paint, brushes, rollers, and other equipment were in the storeroom when he arrived at 8 a.m. Neal denied that he furnished any equipment; it was his testimony that some of the equipment was left by Jones and that some of it was provided by claimant. He stated that claimant’s son retrieved some of the equipment after the accident. Although there is a conflict in the testimony over whether claimant began punching a time clock initially, it is clear that Neal thought claimant was not working a full day and directed him to use the time clock shortly after he began working. The exhibits demonstrated that he generally worked from 8 a.m. to 5 p.m. with one-half hour to one hour for lunch. Respondent did not withhold income tax or social security. The copies of claimant’s pay checks introduced in evidence had the words “painting contractor” typed thereon.

Claimant was initially instructed to paint the exterior of one part of the building at 7600 Stony Island. About a week later, after he completed this portion, he was moved inside to paint the body shop. The work there was completed in three days. He was then instructed to paint the showroom at 7720 Stony Island. At one point while he was in the process of painting the showroom, Neal instructed him to return to the other building to paint the glass windows. Neal made frequent inspections to determine claimant’s progress and tell him the portions and colors of the buildings he wanted painted. For example, claimant testified that on one occasion he was painting the interior of the body shop when Neal told him not to paint the entire length of the wall because he was going to move the body shop. On another occasion, he was told to candy stripe the poles in the showroom. It seems apparent that where claimant was to paint each day, exactly which portions of what building and what colors, and whether he would switch locations were all determined by respondent. A few days before the accident respondent’s porter, who ordinarily washed cars and windows and cleaned the showroom, was assigned by respondent to paint the balcony of the showroom because Neal felt that claimant was working too slowly. The accident from which this case arose occurred approximately six weeks after claimant began working and while he was painting a 20-foot pillar in the showroom. The ladder upon which he was standing slipped, causing him to fall to the marble floor.

This case presents the frequently recurring question of whether one is an independent contractor or an employee for purposes of workmen’s compensation coverage. We have previously characterized the problem as “one of the most vexatious and difficult to determine in the law of compensation.” (O’Brien v. Industrial Com. (1971), 48 Ill. 2d 304, 307; see also Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 20; Ropiequet & Keefe, Coverage of the Illinois Workmen’s Compensation Act, 1957 U. Ill. L. F. 169, 185.) Professor Larson acknowledges that “[t]he closest, the most controversial, and the most numerous cases on status are those involving services, such as repair, maintenance, and incidental construction or installation, that are not in the everyday mainstream of production activity *** [including] window-washers, welders, well cleaners, watchmen, house detectives, steeple-jacks, roofers, plumbers, plasterers, painters, mechanics, machinists, engineers, electricians, carpenters, masons, boiler repairmen, blacksmiths, and repairmen of all kinds.” (1C A. Larson, Workmen’s Compensation sec. 45.31, at 8—174 (1980).) The problem, of course, is that there is no clear line of demarcation, for there can be no inflexible rule applicable to all factual situations. (Coontz v. Industrial Com. (1960), 19 Ill. 2d 574, 577; Immaculate Conception Church v. Industrial Com. (1947), 395 Ill. 615, 620.) Indeed, the problem in this area generally lies not in the applicable rules, but in the varying nature of the factual situations presented. (See O’Brien v. Industrial Com. (1971), 48 Ill. 2d 304, 307.) Since many jobs contain elements of both relationships, and the facts could, depending on their interpretation and the credibility of the witnesses, support either result, we have consistently held that the Commission alone is empowered to evaluate the testimony and draw reasonable inferences therefrom. Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 20; Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155, 157; Lawrence v. Industrial Com. (1945), 391 Ill. 80, 85.) Only in the event its decision is against the manifest weight of the evidence will it be disturbed on review. (Globe Cab Co. v. Industrial Com. (1981), 86 Ill. 2d 354, 363; O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249, 253; Goldblatt Brothers, Inc. v. Industrial Com. (1979), 78 Ill. 2d 62; Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454, 459.) Not unless the undisputed facts are susceptible of but a single inference does the issue become one of law. Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155, 157; Henn v. Industrial Com. (1954), 3 Ill. 2d 325; Henry v. Industrial Com. (1952), 412 Ill. 279, 284; Lawrence v. Industrial Com. (1945), 391 Ill. 80, 85.

Among the various factors that should be considered in resolving the worker’s status are the amount of control and supervision, the right of discharge, the method of payment, the skill required in the work to be done, the source of tools, material or equipment, and the work schedule. (Globe Cab Co. v. Industrial Com. (1981), 86 Ill. 2d 354, 362; Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 20; Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 97; Lawrence v. Industrial Com. (1945), 391 Ill. 80.) Of these factors, the right to control the manner in which the work is done is the most important. Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 97; Greenberg v. Industrial Com. (1961), 23 Ill. 2d 106; O’Brien v. Industrial Com. (1971), 48 Ill. 2d 304, 307; Henn v. Industrial Com. (1954), 3 Ill. 2d 325; see also Restatement (Second) of Agency sec. 220 (1958); Weidner, The Workmen’s Compensation Act, 1967 U. Ill. L.F. 21, 24-25.

In this case, the facts are essentially uncontroverted, the only real conflict being the source of the equipment, and certainly the Commission’s decision that an employer-employee relationship existed cannot be said to be contrary to the manifest weight of the evidence. The record demonstrates that respondent not only had the right to control the details of the work, but that he exercised that right considerably beyond the point which would ordinarily have been expected had claimant been an independent contractor who undertook to produce a given result or to do a specified piece of work in accordance with his own ideas or a plan previously given him. (See Immaculate Conception Church v. Industrial Com. (1947), 395 Ill. 615, 620; Nelson Brothers & Co. v. Industrial Com. (1928), 330 Ill. 27.) Although the test is based upon the “right” to control rather than the exercise of control, evidence of actual control is the best evidence of the parties’ understanding of the employer’s right of control, and only the clearest evidence that its exercise exceeded the employer’s authority will overcome the inference of its existence. (1C A. Larson, Workmen’s Compensation sec. 44.32, at 8-67-68; sec. 44.33, at 8-73 (1980).) In addition, claimant was paid by the hour, was required to punch a time clock as were respondent’s other employees, was subject to discharge at any time, generally worked an eight-hour day beginning at 8 a.m. and ending at 5 p.m., devoted his full time to respondent during the period in question, and was otherwise treated as respondent’s employee. The only undisputed facts that support a contrary inference are that respondent did not withhold income or social security taxes, and claimant’s checks indicated “painting contractor” on their face. These facts cannot offset the factors which decisively show that claimant was an employee and not an independent contractor. (See Kirkwood Brothers Construction Co. v. Industrial Com. (1978), 72 Ill. 2d 454, 460 (although the failure to deduct for withholding tax is relevant, it is not decisive); see also Luby v. Industrial Com. (1980), 82 Ill. 2d 353, 359 (a statement by the employer cannot foreclose inquiry into the relationship, and the employer’s failure to withhold income tax is not a significant factor).) The fact that claimant’s son assisted him is not necessarily determinative of the nature of the relationship between the parties, especially where, as here, claimant was paid additional money for that purpose. See Lawrence v. Indus trial Com. (1945), 391 Ill. 80, 87.

Referring to the discussion in our opinion in Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, 21-24, and the concurring opinion in Globe Cab Co. v. Industrial Com. (1981), 86 Ill. 2d 354, 363-65 (Ryan, J., concurring), regarding Professor Larson’s “relative nature of the work” test, respondent urges that we adopt that test which, he argues, would produce a result contrary to that reached here. We believe, however, that respondent misinterprets that test when he suggests that claimant would be an independent contractor because he was a painter whose services were not of the type used by respondent in the everyday conduct of his business of selling and servicing automobiles. Professor Larson emphasizes that “[t] he nature of the claimant’s work, in the abstract, is seldom a safe guide in itself, and for this reason it is dangerous to rely on precedents classified solely by the character of the worker’s job ***.” (1C A. Larson, Workmen’s Compensation sec. 43.52, at 8—19 (1980).) “The independence of these artisans is not to be determined by looking at the artisan or job alone, but by judging how independent, separate, and public his business service is in relation to a particular employer.” (1C A. Larson, Workmen’s Compensation sec. 45.31, at 8—175 (1980).) “If the worker does not hold himself out to the public as performing an independent business service, and regularly devotes all or most of his independent time to the particular employer, he is probably an employee, regardless of other factors.” (1C A. Larson, Workmen’s Compensation sec. 45.31(a), at 8—175 (1980).) With respect to nonrecurring but substantial services, Professor Larson states that “if *** the thing contracted for is a business service rather than the personal services of the worker, the status is that of independent contractor. Indicia of business service include the simultaneous carrying-on of other contracts; the absence of necessity for the contractor personally to do any physical work; and the contractor’s advertising or holding himself out to the public as furnishing this business service.” 1C A. Larson, Workmen’s Compensation sec. 45.31(b), at 8-184 to 8-185 (1980).

In this case, claimant did not hold himself out to the public as furnishing an independent business service. He did not advertise his services, had no business cards, did not have a telephone registered in his name, never submitted a bid as a contractor, was required to perform the work himself, except that he could have his son assist him, for which he would be paid additional money, and devoted his full services to respondent over this period. Notwithstanding the different nature of claimant’s job relative to the respondent’s general business, the Commission’s finding that claimant was an employee would not be contrary to the manifest weight of the evidence, even were we to apply Professor Larson’s rationale as respondent requests.

The judgment of the circuit court is accordingly affirmed.

Judgment affirmed.


author: JUSTICE GOLDENHERSH

text:
    (No. 54848.
    CATERPILLAR TRACTOR COMPANY, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Lee A. Anderson, Appellee and Cross-Appellant).

      Opinion filed March 16, 1982.

      Robert F. Fahey, of Peoria, for appellant and crossappellee.
    Charles W. Kohr, of Mathis, Sloan, Littler & Kohr, and Glenn J. Church, Ltd., both of Peoria, for appellee and cross-appellant.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On February 5, 1971, petitioner, Lee A. Anderson, while employed by respondent, Caterpillar Tractor Company, sustained an injury to his back and filed an application for adjustment of claim. A settlement contract was entered into providing for the payment of workmen’s compensation for the loss of use to the extent of 20% of petitioner’s left leg and 11V%% of his right leg. The Industrial Commission approved the settlement contract and a petition for lump sum payment.

Petitioner returned to work for respondent and on May 1, 1974, sustained an additional injury to his lower back and legs. A claim was filed for workmen’s compensation. On June 19, 1975, an arbitrator for the Industrial Commission entered an award finding that petitioner was entitled to temporary total compensation for a period of 55 1/7 weeks and that the disabling condition was temporary and had not yet reached a permanent condition. (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(b).) On review the Industrial Commission affirmed-the award.

Petitioner returned to work on September 29, 1975, and on October 3, 1975, suffered an accidental injury. The hearings to determine the condition of permanent disability resulting from the injury suffered on May 1, 1974, and the claim for compensation for the injury suffered on October 3, 1975, were consolidated. Evidence was heard on August 17, 1977, and May 3, 1978. On September 8, 1978, the arbitrator entered an award in the claim arising out of the occurrence on May 1, 1974, awarding petitioner compensation for the loss of 50% of the use of each leg. On the same day the arbitrator filed a decision of the claim arising out of the occurrence on October 3, 1975, awarding petitioner compensation for permanent and total disability.

On review the Industrial Commission modified the awards by setting aside the award for compensation for 50% of the loss of use of each leg. On certiorari the circuit court remanded the cause to the Industrial Commission' for clarification of its decision. Subsequent to the filing of the Industrial Commission’s amended decision the circuit court confirmed, respondent appealed, and petitioner cross-appealed. Respondent has since dismissed its appeal, and this matter is before us on petitioner’s cross-appeal.

The effect of the order of the Industrial Commission was to merge the two awards of September 8, 1978, so that petitioner was awarded compensation for life for permanent and total disability. It is petitioner’s contention that the decision of the Industrial Commission setting aside the award for the specific loss of 50% of the use of each of his legs was against the manifest weight of the evidence.

Petitioner’s testimony shows that the injury on May 1, 1974, was caused by his being struck in the back by a power truck. When he returned to work on September 29, 1975, he was instructed to limit his lifting to not more than 30 pounds. He was assigned to work which required him to push, pull and lift motor heads which weighed as much as 150 pounds. He was turning a motor head on a conveyor when “something popped in the right side of [his] lower back.”

Although at the hearing held on August 17, 1977, petitioner testified as to his condition shortly before the occurrence of October 3, 1975, the record contains no medical evidence which purports to define the permanent condition, at that time, of the earlier injury. In its decision setting aside the award of compensation for loss of use to the extent of 50% of each of petitioner’s legs the Commission noted “that compensation for permanent disability as a result of said accidental injuries is awarded to the petitioner herein in [a companion case].” We conclude that in reaching this conclusion the Commission found that the disabling condition resulting from the injury of May 1, 1974, did not reach its permanent condition until after the occurrence of October 3, 1975.

On this record we are unable to say that the decision of the Commission is contrary to the manifest weight of the evidence. The judgment of the circuit court is therefore affirmed.

Judgment affirmed.


author: CHIEF JUSTICE RYAN

text:
    (No. 54591.
    JACK M. DRURY et al., Appellees, v. THE COUNTY OF McLEAN, Appellant.

      Opinion filed March 16, 1982.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert E. McIntire and Marc Christopher Loro, Assistant State’s Attorneys, of counsel), for appellant.
    James Walker, Ltd., of Bloomington (John R. Bailen, of counsel), for appellees.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Ronald P. Stake, Assistant State’s Attorney, of counsel), for amici curiae Morgan M. Finley.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Plaintiffs, Jack M. Drury and Raymond Brezinski, filed suit against the defendant, McLean County, seeking reimbursement of fine money and costs they paid to the clerk of the circuit court of that county after plaintiffs had been convicted under a statute later held unconstitutional. The circuit court denied class certification pursuant to our decision in McCabe v. Burgess (1979), 75 Ill. 2d 457, and granted summary judgment in favor of the named plaintiffs as to the amount of court costs paid to the county. The court denied summary judgment in favor of plaintiffs for reimbursement of fine money, ruling that the clerk was not a county official and that, therefore, payment to the clerk could not be payment to the county. The appellate court reversed, with one justice dissenting. (92 Ill. App. 3d 83.) We granted leave to appeal. We now reverse the appellate court.

Plaintiffs were convicted, and each paid a fine and court costs under the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22—1 et seq.). That act, as it related to marijuana, was declared unconstitutional in People v. McCabe (1971), 49 Ill. 2d 338. Subsequently, this court held that all those convicted under the Act had a right to the expungement of their convictions and the return of any fine money and court costs attributable to those convictions. (People v. Meyerowitz (1975), 61 Ill. 2d 200.) Plaintiffs now seek to be reimbursed the fine money from the defendant County of McLean. The fine money was paid by the plaintiffs to the clerk of the circuit court, and that clerk distributed the money, one-half each to the town of Normal and the State of Illinois, apparently pursuant to the Drug Abuse Control Act (Ill. Rev. Stat. 1969, ch. 111½, par. 810), rather than under the appropriate statute (Ill. Rev. Stat. 1969, ch. 53, par. 18a). The County of McLean never received any of the fine money paid by the plaintiffs but did receive the costs which they paid.

Plaintiffs argue that the clerk of the circuit court is a county official and that, therefore, money received by the clerk as a county official is also received by the county. The primary issue then is whether the clerk of the circuit court of McLean County is a county official. We hold that under our constitution of 1970 the clerks of the circuit courts in this State are not county officials, but are nonjudicial members of the judicial branch of State government. This being so, the circuit clerk is not an agent of the county, and the county is not liable for fine money paid to the circuit clerk but never received in its treasury.

Historically, the circuit court clerks were elected county officials. (Ill. Const. 1870, art. X, sec. 8.) The office was specially mentioned in article X, section 8, which provided for the election of county officers. However, the new judicial article of the 1870 Constitution adopted in 1962, which was effective January 1, 1964, provided that the General Assembly “shall provide by law for the selection by the judges or election, terms of office, removal for cause and salaries of clerks and other non-judicial officers of the various courts; ***.” (Emphasis added.) (Ill. Const. 1870, art. VI (1964), sec. 20.) Confusion was created as to the status of clerks of the circuit courts following the 1962 amendment to article VI of our constitution. The amendment, in the language quoted above, refers to clerks as nonjudicial officers of the court, and does not distinguish between clerks of the circuit courts and clerks of the appellate and supreme courts. However, article X, section 8, of the 1870 Constitution was not specifically repealed or amended in 1962, and clerks of the circuit court were still referred to in the 1870 Constitution as county officers. By virtue of section 8 of article X, circuit clerks were not only county officers, but also were required to be elected, and their terms of office were fixed at four years. Under the 1962 amendment to article VI, the General Assembly had the authority to determine whether the clerks of the circuit court should be elected or appointed by the judges and to provide for the term of office. Also, under the amendment, as noted above, circuit court clerks became nonjudicial officers of the court.

In Johnson v. State Electoral Board (1972), 53 Ill. 2d 256, this court, applying general principles of statutory construction, held that the more recent provisions of the 1962 amendment to article VI abrogated the provisions of section 8, article X, which were inconsistent with the amendment. The court held that, because of such inconsistencies, section 8 of article X, governing the election of circuit court clerks, had been impliedly repealed by the amendment.

Applying the same reasoning, the provisions of article X, section 8, designating circuit court clerks as county officers were likewise impliedly repealed by the inconsistent provisions of section 20 of article VI of the 1962 amendment, which classifies all clerks as nonjudicial officers of the court. The fact that the 1962 amendment authorized the General Assembly to provide for the appointment instead of the election of clerks as required by section 8 of article X, to provide for the term of office instead of the term of four years, as set out in section 8 of article X, and designated clerks as nonjudicial officers of the court instead of county officers as in section 8 of article X, impliedly repealed section 8 of article X of the 1870 Constitution as it applied to clerks of the circuit court.

Under our present constitution, article VI, section 18(b), is substantially the same as article VI, section 20, of the 1870 Constitution, as amended. Section 18(b) of the judicial article of the 1970 Constitution provides:

“(b) The General Assembly shall provide by law for the election, or for the appointment by Circuit Judges, of clerks and other non-judicial officers of the Circuit Courts and for their terms of office and removal for cause.” (Ill. Const. 1970, art. VI, sec. 18(b).)

The Committee on Judiciary, in its comments, said that “[i]t [the proposal] would leave untouched the existing provisions which give the legislature the option of providing for the appointment by the judges, or the election, of clerks and other non-judicial officers of the circuit courts.” (Emphasis added.) 6 Record of Proceedings, Sixth Illinois Constitutional Convention 1057-58 (hereinafter cited as Proceedings.)

The debates of the Sixth Illinois Constitutional Convention reflect the understanding of the delegates that the judicial article of 1962 changed the status of the circuit court clerk from county officer to a nonjudicial officer of the judicial branch of State government and that the convention desired to continue this change. (4 Proceedings 2630-40.) In discussing a proposal by Delegate Dunn that the circuit court clerk be made to turn over fees to the county treasurer, Delegate Parkhurst stated:

“Now, the trouble is that the circuit clerk by definition is no longer a county official. He is now, by the mandate of the judicial article, as indeed it has been since 1962, he is now an official of the court system. He is not a county officer. ***” (4 Proceedings 2633.)

This understanding was reflected throughout the debates during the discussion of various proposed amendments both to the judicial article (article VI) and the local government article (article VII). See 4 Proceedings 2631, 2632, 2638, 2639, 3412.

We have previously acknowledged that in construing the Constitution the true inquiry concerns the understanding of the meaning of its provisions by the voters who adopted it. However, the practice of consulting the debates of the members of the convention which framed the constitution has long been indulged in by courts in determining the meaning of provisions which are thought to be doubtful. (People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 527.) The debates, therefore, aid in determining the intent of the drafters of the Constitution.

The debates of the Sixth Illinois Constitutional Convention reveal that the drafters intended the clerk of the circuit court to be a nonjudicial member of the judicial branch of the State government. The convention rejected amendments attempting to include references to the circuit court clerk in the local government article. It was the clear understanding of the delegates that they were continuing the constitutional changes that had been effective since January 1, 1964—namely, moving the clerk of the circuit court from the county officers section of the 1870 Constitution to the article on the judiciary. Further support for our conclusion is found in the local government article of our constitution of 1970 covering county officers, which does not mention or provide for the position of a clerk of the circuit court. (Ill. Const. 1970, art. VII, sec. 4.) In the Committee on Local Government report on county officers, it states that “[t] he new section would eliminate as mandatory constitutional officers in each county certain offices enumerated in the present Constitution, namely *** the clerk of the Circuit Court ***.” 7 Proceedings 1703.

Article VII, section 4(c), also states that county “[o] ffices other than sheriff, county clerk, [and] treasurer *** may be eliminated *** by county ordinance.” (Emphasis added.) (Ill. Const. 1970, art. VII, sec. 4(c).) The result, if we were to hold that the clerk was a county officer, would be that any county could eliminate the office of clerk of the circuit court. The Constitution vests the judicial power in a “Supreme Court, an Appellate Court and Circuit Courts.” (Ill. Const. 1970, art. VI, sec. 1.) In Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, this court held unconstitutional a Cook County ordinance which directed the circuit court clerk to collect a fee when each party filed a pleading or other appearance in circuit court. In Ampersand the court stated:

“However, the amendment to article VI of the Constitution of 1870, effective January 1, 1964, established a unified court system throughout this state. *** The same scheme prevails under the 1970 Constitution. Only one unified court system operating statewide is contemplated. Article VI of the 1970 Constitution does not contemplate nor does it authorize the exercise of any control over or permit the imposition of a burden on the judicial system by any local entity.
The administration of justice under our constitution is a matter of statewide concern and does not pertain to local government or affairs.” (Emphasis added.) (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 542.)

Implicit in this language is the fact that the clerk of the circuit court must be a member of State government, not subject to the control of any local government. We could not permit the administration of justice to hinge on the passage of a county ordinance abolishing the essential position of the clerk of the circuit court. We conclude that the clerk of the circuit court is a nonjudicial member of the judicial branch of State government and not a county officer.

We acknowledge that county boards are still required by law to provide for the payment of expenses of the office of the clerk of the circuit court and, within statutory limits, to fix the salary of the clerk. Section 18(c) of article VI of our constitution provides:

“(c) The salaries of clerks and other non-judicial officers shall be as provided by law.” (Ill. Const. 1970, art. VI, sec. 18(c).)

The legislature has provided by law that the county boards throughout the State are to pay the salary of the clerk. (Ill. Rev. Stat. 1979, ch. 25, par. 27.3.) It is within the legislature’s constitutional powers to require that counties pay the salary and expenses of the circuit court clerk. The fact that counties pay the salaries and expenses of circuit court clerks does not make the office of circuit court clerk a county office.

The plaintiff relies on our decision in People v. Meyerowitz (1975), 61 Ill. 2d 200, to impose liability on the county for reimbursement of the fine money. In Meyerowitz we held that all defendants convicted under the Act were entitled to reimbursement of court costs and fine money and that in the interest of judicial economy separate proceedings were not necessary to obtain that reimbursement, even though the county was not a named party. In Meyerowitz, the fine money had been paid to and received by the county. In the present case, however, the fine money was paid to the clerk of the circuit court, a member of the judicial branch, and distributed by the clerk to the State of Illinois and the town of Normal. The county cannot be held liable here, since the fine money was not collected by one of its officers and the money was never received in the county treasury. Meyerowitz is clearly inapplicable.

The appellate court and the plaintiffs in this cause have relied on our statement in Meyerowitz that “[a] n action to recover fine monies paid under an unconstitutional statute *** resemble[s] the common law action for money had and received” (61 Ill. 2d 200, 212). An action for money had and received in the nature of an action in assumpsit is maintainable where defendant has received money which in equity and good conscience belongs to the plaintiff. (Board of Highway Commissioners v. City of Bloomington (1911), 253 Ill. 164, 174; National Malleable Castings Co. v. Iroquois Steel & Iron Co. (1929), 333 Ill. 588; see 27 Ill. L. & Prac. Money Lent, Paid, or Received (1956).) Although the plaintiffs may be legally entitled to the fine money, the defendant here never received it. Furthermore, as we stated earlier, the clerk of the circuit court is not a county officer, and money received by the clerk cannot be said to be received by the county. Also, as to the fines paid, there is no unjust enrichment of the county, since it never received the money, either directly or indirectly. An action in the nature of money had and received for the money paid as fines therefore cannot lie against the county.

In Gray v. Callender (1899), 181 Ill. 173, this court held that “where one person pays money to another with the mutual understanding that it is to be applied to a particular purpose, and the person so receiving the money fails to apply it to that purpose but pays it over to a third person who has no right to it, then an action for money had and received lies in favor of the party so paying the money, against the one receiving it from him.” (Gray v. Callender (1899), 181 Ill. 173, 176-77.) Conversely, it was held in City of Chicago v. Fidelity Savings Bank (1882), 11 Ill. App. 165, that since the city had never received tax money wrongfully collected by the town collector and since the town collector was not; the agent of the city, an action against the city for money had and received did not lie. The court stated:

“In an action for money had and received, it is essential to prove that the defendant has actually received the money or money’s worth. It is not enough to show that there is money in the hands of a third person which the defendant is entitled to receive ***.” (City of Chicago v. Fidelity Savings Bank (1882), 11 Ill. App. 165, 169.)

Essentially the same situation exists here. The plaintiffs paid the money to the clerk of the court for the purpose of satisfying the judgment against them and so that the clerk would disburse the funds to the proper authorities. The clerk, through an apparent mistake, paid the money to the State and the town of Normal, third parties who had no right to the money. The county, though legally entitled to the money, never received it. We need not decide here whether plaintiffs may recover from those who received the money or from the clerk. However, under these facts, no recovery for the fine money can be had from the county.

In view of our holding that the clerk of the circuit court is not a county officer, money received by the clerk as fines is not, ipso facto, received by the county. However, any money received by the county into its treasury is recoverable from the county. In this instance, the court costs paid by the plaintiffs and received by the county are to be refunded to the plaintiffs.

We hold that the clerk of the circuit court is not a coúnty official. The judgment of the appellate court is therefore reversed and the judgment of the circuit court of McLean County is affirmed, and the cause is remanded to the circuit court of McLean County.

Appellate court reversed; circuit court affirmed; cause remanded.


text:
    (No. 54348.
    CHARLES HOWARD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Anderson Clayton, Appellee).

      Opinion filed March 16, 1982.

      Calandrino, Logan & Robeson, of Springfield (J. Jay Robeson, of counsel), for appellant.
    Robert L. Mueller, of Livingstone, Mueller, Gunning & Davlin, of Springfield, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

The claimant, Charles Howard, filed a petition under section 19(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)), alleging an increase in disability since an earlier decision of the Industrial Commission dated September 30, 1976. The Industrial Commission denied this latest petition on March 5, 1979. The circuit court of Morgan County confirmed the decision of the Industrial Commission on December 4, 1980. The claimant has appealed to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)).

This is the second time that this petitioner has appealed to this court seeking an increase in disability. In the original action before an arbitrator of the Industrial Commission the petitioner received an award of compensation for 64 weeks of temporary total disability and compensation for a 20% loss in the use of his right leg, as well as 10% loss in the use of his left leg. The first decision of the Industrial Commission affirmed the decision of the arbitrator. While that first decision of the Commission was being appealed, the claimant filed a petition under section 19(h) of the Act alleging an increase in disability. That petition was denied and was consolidated with the original case. The circuit court of Morgan County confirmed both decisions of the Industrial Commission. On direct appeal we affirmed the circuit court of Morgan County. Howard v. Industrial Com. (1980), 81 Ill. 2d 50.

Section 19(h) of the Act provides in part:

“An agreement or award under this Act providing for compensation in installments, may at any time within 18 months after such agreement or award be reviewed by the Commission at the request of either the employer or the employee, on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.
However, as to accidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made as a result of such accident, such agreement or award may at any time within 30 months after such agreement or award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(h)).

The purpose of a proceeding under section 19(h) is to determine whether a claimant’s disability has changed since the time of the original decision by the Industrial Commission. Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230, 236; Zimmerly Construction Co. v. Industrial Com. (1972), 50 Ill. 2d 342, 344.

At the second section 19(h) proceeding the petitioner testified that pain in his lower back had increased in intensity since the previous hearing. Because of that severe back pain the petitioner claims he has problems sleeping and cannot drive an automobile for any length of time. The petitioner also testified that he now experiences muscle spasms in his left leg.

Dr. J. A. Gawaitney examined Mr. Howard on July 20, 1978. Dr. Gawaitney’s report indicates that the claimant’s X rays showed a bilateral pars interarticulares defect with grade 1 to 2 spondylolisthesis of the fifth lumbar vertebra. Spondylolisthesis is “[a] forward displacement of one of the bony segments of the spine (i.e., of a vertebra) over its fellow below, but usually the slipping of the fifth or last lumbar (loin) vertebra over the body of the sacrum.” 3 J.E. Schmidt, Attorney’s Dictionary of Medicine S-133 (13th ed. 1979).

Evidence presented in the original proceeding is relevant in measuring whether the claimant’s position has changed since the time of the" first Industrial Commission decision. (Zimmerly Construction Co. v. Industrial Com. (1972), 50 Ill. 2d 342, 344.) Dr. Clifford Lynch is an orthopedic specialist who treated the claimant from May 10, 1972, through May 26, 1973. Dr. Lynch’s reports of April 25, 1972, May 16, 1972, and November 19, 1973, were introduced into evidence in the original proceeding before the arbitrator. They indicate Mr. Howard to be “suffering from congenital ‘spondylolisthesis with pars interarticulares defects bilaterally’ ***. This report also stated that Dr. Lynch had recommended a spinal fusion and that claimant had declined.” (Howard v. Industrial Com. (1980), 81 Ill. 2d 50, 55-56.) In Dr. Gawaitney’s report dated July 20, 1978, he suggests that a spinal fusion of the “4th lumbar vertebra and 5th lumbar vertebra to the sacrum” would be needed before Mr. Howard could return to doing work that he performed prior to the accident.

The facts show that Mr. Howard’s physical condition is essentially the same as it was at the time of the previous proceedings before the Commission. The Industrial Commission found that there were not sufficient changes in the petitioner’s position to warrant a modification of the Commissioner’s earlier award. Such a factual determination on the part of the Industrial Commission as to the extent of disability will not be set aside unless contrary to the manifest weight of the evidence. (Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230, 236-37, citing Zimmerly Construction Co. v. Industrial Com. (1972), 50 Ill. 2d 342, 346; see Pruiett v. Industrial Com. (1976), 65 Ill. 2d 240, 243.) Because the Industrial Commission’s conclusion here is not against the manifest weight of the evidence, we affirm the judgment of the circuit court of Morgan County.

Judgment affirmed.


author: JUSTICE SIMON

text:
    (No. 55037.
    GENERAL ELECTRIC COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Donna Williamson, Appellee).

      Opinion filed March 16, 1982.

      Dukes, O’Rourke, Stewart, Martin & Helm, Ltd., of Danville (John F. Martin, of counsel), for appellant.
    James C. Serkland, of Scheele, Serkland & Boyle, Ltd., of Chicago, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The circuit court of Vermilion County confirmed an award of the Industrial Commission against the challenge of the employer, General Electric Company, and the employer appeals.

The first issue is whether the claimant’s condition was caused by an accident related to her work with this employer. While working for another employer 10 years earlier, she developed a wrist problem known as carpal tunnel syndrome, had a surgical procedure called carpal tunnel release, and received a compensation award. Her latest job was with G.E. It consisted of picking up coils weighing about three pounds each, inserting them in a machine for processing, and removing them, by which time they would weigh about seven pounds. When she began the job, she could do it without difficulty and in general had no problem with her arm, but after a few months her arms started giving her some trouble at work. One day she felt a sharp pain in her wrist while picking up a coil, and she reported to the nursing station. She continued working for several months with the help of a wrist bandage, and her condition worsened until she could no longer do her job. She had once more developed carpal tunnel syndrome and required more surgery.

From these facts and the medical evidence, the Commission could properly find that the claimant’s condition was not simply a natural recurrence of her old problem, but the result of a new, work-related injury. She may have started the job with a weaker wrist than most people, but employers take their employees as they find them (Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 177). When workers’ physical structures, diseased or not, give way under the stress of their usual tasks, the law views it as an accident arising out of and in the course of employment. (Doyle v. Industrial Com. (1981), 86 Ill. 2d 544; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.) Even if the ultimate collapse of the claimant’s wrist may have been only the high point in a series of repetitive job-related stresses on her body, the Commission could properly find that her condition was the result of an accident within the meaning of the Workmen’s Compensation Act. See Perkins Products Co. v. Industrial Com. (1942), 379 Ill. 115.

The employer emphasizes the claimant’s inability to remember the exact date of her accident. The date, however, was established by the employer’s records.

To the extent G-E.’s argument on these points is directed to discrediting the claimant’s testimony, we can only observe, as we have scores of times, that matters of causation and other facts, especially matters of credibility, are for the Industrial Commission, and we will not set aside the Commission’s decision unless it is against the manifest weight of the evidence. It is not our province to reweigh the evidence.

The perplexing issue in this case is the proper measure of compensation for the disability remaining after the period of temporary total incapacity. The arbitrator’s award was for 20% loss of use of a hand. The Industrial Commission, instead, awarded compensation based on earnings loss, under section 8(d)(1) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)(1)). That is, as a result of her injury, the claimant could not return to her job with G.E., but was able to get other work that did not strain her hands as much and did not pay as well. The Commission’s award was based on the difference between what she earned before her accident and what she earned after she recovered from surgery. G.E. argues that such an award was improper, that the claimant should instead have received some percentage of a scheduled award under section 8(e), for permanent partial loss of use of a hand or arm.

Section 8(e) begins:

“For accidental injuries in the following schedule, the employee shall receive compensation for the period of temporary total incapacity *** and shall receive in addition thereto compensation for a further period for the specific loss herein mentioned, but shall not receive any compensa- . tion under any other provisions of this Act. ” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(e).)

However, in Springfield Park District v. Industrial Com. (1971), 49 Ill. 2d 67, this court held that the italicized language did not establish section 8(e) as the exclusive remedy for all scheduled injuries, but was intended only to prevent double recovery; that is, if a claimant receives an award under section 8(e), he is not eligible for any other compensation except for temporary total incapacity. In particular, Springfield Park District held that if an injury listed in section 8(e) permanently and completely disables an employee for work, he is entitled to a total disability award under section 8(f) (Ill. Rev. Stat. 1969, ch. 48, par. 138.8(f)).

In Pruiett v. Industrial Com. (1976), 65 Ill. 2d 240, on the other hand, this court barred recovery under section 8(d) for earnings loss in cases of scheduled injuries not producing total disability, holding that recovery was to be exclusively under section 8(e). The reasoning of Pruiett was that section 8(d), as it then read, expressly applied “except in cases covered by the specific schedule” of paragraph (e) (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(d)).

The Act, however, has been amended since the accident that was the subject matter of Pruiett. The exception that formerly read “except in cases covered by the specific schedule” has been changed to read “except in cases compensated under” paragraph (e) (emphasis added) (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)(1)). This court has never interpreted the new language.

The change in language must have been intended to change the law, especially because the same act that effected the change (Pub. Act 79—79) also added a new provision to section 8(d), namely section 8(d)(2), dealing with serious and permanent injuries “not covered by” paragraphs (c) and (e) (emphasis added) (1975 Ill. Laws 224, 252). The legislature did not simply like the sound of “compensated” better than “covered”; it continued to use “covered” when it meant “covered,” but amended section 8(d)(1) to use a different word. The obvious meaning of section 8(d)(l)’s amended language (“except in cases compensated under” paragraph (e) (emphasis added)) is that compensation under section 8(d)(1) is barred only if compensation is actually awarded under section 8(e), not simply because an injury is listed in the schedule as compensable under paragraph (e). Compensation may be proper under either section, though not both at once.

The change in the law accomplished by this amendment is in line with a nationwide trend. Professor Larson summarizes:

“Although it is difficult to speak in terms of a majority rule on this point, because of significant differences in statutory background, it can be said that at one time the doctrine of exclusiveness of schedule allowances did dominate the field. But in recent years there has developed such a strong trend in the opposite direction that one might now, with equal justification, say that the field is dominated by the view that schedule allowances should not be deemed exclusive ***.” 2 A. Larson, Workmen’s Compensation sec. 58.23, at 10—257 (1981).

This trend is supported by sound reasons. Scheduled awards are often not fair. For example, partial loss of use of a finger may be an annoyance to some workers, but a catastrophe for a violinist. Nor are scheduled allowances always fast and certain. It is often easier to calculate how much a claimant’s earnings have decreased since the accident than to assign a percentage partial loss of use. Exclusive scheduled awards cannot be justified as a kind of liquidated damages, an unchallengeable estimate of earnings loss. Rather, the schedule represents a presumed minimum loss, looking toward the uncertainties of future employment prospects. The law recognizes that the loss of a body part will probably catch up with a worker sooner or later, even if his current work happens to be only slightly impeded by the injury. The worker is allowed to recover the scheduled amount without having to demon-' strate how the expected eventual loss of earnings will come about. If, however, he can prove an actual loss of earnings greater than the schedule presumes, there is no reason why he should not recover that loss. In theory, the basis of the workers’ compensation system should be earnings loss, not the schedule.

We conclude that the Act, as amended, authorizes awards under section 8(d)(1) even for injuries enumerated in section 8(e). The Industrial Commission’s decision to award compensation under section 8(d) was not improper.

The final issue is the employer’s demand for a deduction for the claimant’s partial disability from her earlier accident. The employer, however, failed to establish, except by guesswork, what the earlier finding of partial disability was. Moreover, G.E. relies on section 8(e)(17), which, as it more or less concedes, does not apply to awards under section 8(d)(1), such as this one. The award is based on the claimant’s earnings just before the present accident, not on what she might have earned had she never had the previous accident. Her entire earnings loss, so calculated, may fairly be attributed to the latest accident.

The judgment is affirmed.

Judgment affirmed.


text:
    (No. 54847.
    EULA JOHNSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The Peoria County Belwood Nursing Home, Appellee).

      Opinion filed March 16, 1982.

      Morton S. Goldfine, of Goldfine &. Bowles, P.C., of Peoria, for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Eula Johnson on April 18, 1979, filed an application for adjustment of her claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for accidental injuries arising out of and in the course of her employment by the respondent, the Peoria County Belwood Nursing Home. After a hearing, an arbitrator made an award of compensation for both temporary total Incapacity and permanent partial disability. The decision was affirmed by the Industrial Commission. The circuit court of Peoria County, however, set aside the Commission’s finding on the ground that the finding of an accidental injury was against the manifest weight of the evidence. The claimant appealed directly to this court pursuant to Rule 302(a). 73 Ill. 2d R. 302(a).

Mrs. Johnson, who was the only witness at the arbitrator’s hearing, testified that she was hired - by the respondent in mid-February 1978. She worked in the dietary kitchen, and her duties included the loading and unloading of a food cart. The cart weighed approximately 500 pounds, and she was required to push and pull the cart as she maneuvered it through routes in the nursing home each day.

Prior to working at the nursing home her hands had never pained her, she said. On March 14, 1978, however, her hands were painful. The problem with her hands had developed gradually, and by March 14 she said that she experienced pain and a numbness in her fingers, hands and arms severe enough for her to inform her employer and to seek medical attention. She believed that the condition may have been caused by the pulling of the cart, because that was the most physical part of her work.

She first consulted her personal physician, Dr. Petras Banys, who ordered a nerve test to be made at the Institute of Physical Medicine and Rehabilitation in Peoria on March 14. Dr. Kyung J. Lee’s report of the test results stated that Mrs. Johnson said that she had been experiencing pain and numbness in her hands for about four weeks.

Dr. Banys also referred Mrs. Johnson to an orthopedic surgeon, Dr. David Connor. His report stated that he first examined Mrs. Johnson on August 2, 1978. Dr. Connor diagnosed her problem as bilateral carpal tunnel syndrome, which another report in evidence described as the entrapment of the median nerve on both wrists. On August 21, he performed surgery to decompress the median nerves of both hands. Dr. Connor stated that he was uncertain whether the condition was work related.

Dr. Banys’ evidence deposition was taken and received into evidence. His records showed that in June 1977 he had examined Mrs. Johnson for cafeteria work and that his examination disclosed some weakness in the wrists.

Dr. Horacio Rivero examined the claimant in June 1979, after she had filed her application for adjustment of claim. A report he prepared quoted from a medical treatise to the effect that the syndrome may be initiated by a direct trauma, such as a fall on the outstretched hand, or by tenosynovitis of the flexor tendons, or it could result as a complication of an injury such as a Colles’ fracture or a fracture of any of the carpal bones. His report, and the other reports described, were received in evidence.

On this evidence, the arbitrator found that on March 14, 1978, the claimant sustained accidental injuries arising out of and in the course of her employment. He awarded her compensation for temporary total disability and for permanent partial disability as well. On review the Industrial Commission affirmed the arbitrator’s decision but modified his award of permanent partial disability.

The respondent sought a writ of certiorari, and the circuit court of Peoria County set aside the finding of the Commission. The court held that there was no compensable injury because there was no proof that an accident had occurred. The only issue, the parties agree, is whether the Commission’s finding that Mrs. Johnson sustained accidental injuries arising out of and in the course of her employment was contrary to the manifest weight of the evidence.

The Workmen’s Compensation Act is described in its title as “An Act to promote the general welfare *** by providing compensation for accidental injuries or death suffered in the course of employment ***.” In International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, 89, this court stated:

“ [A] n injury is accidental within the meaning of the Act when it is traceable to a definite time, place and cause and occurs in the course of employment unexpectedly and without affirmative act or design of the employee. This definition has been consistently adhered to by this court.”

The claimant does not point to a particular event or occurrence as the accident causing her injury or condition, and her testimony was that the condition developed gradually.

Nevertheless she contends that she proved an accidental injury under the “repetitive trauma” concept. Her argument is supported, she claims, by the decisions in Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, and Perkins Products Co. v. Industrial Com. (1942), 379 Ill. 115, in which this court held compensable injuries that resulted from repeated actions, such as the repeated falling of cans upon an employee’s foot (Quaker Oats), or repeated movement of the arms in the employee’s work activities (Perkins). She contends that here she proved an accident by showing that the repeated traumas involved in the daily work of loading and maneuvering the cart caused the medical condition.

Neither of the cited cases is helpful to the claimant. In both Quaker Oats and Perkins there was medical testimony as to causation, which warranted the Commission’s relating the injuries with the repeated traumas. (414 Ill. 326, 334; 379 Ill. 116, 119.) There is no such evidence of causation in the record here.

Dr. Lee’s report, which was introduced into evidence by the claimant, stated that she had been experiencing pain and numbness in the hands for about four weeks prior to March 14. In none of the numerous medical reports in evidence was an opinion expressed that her condition was caused, or could have been caused, by her steering of the carts. Cf. Festa v. Teleflex, Inc. (Fla. App. 1980), 382 So. 2d 122 (where medical evidence showed that the claimant’s carpal tunnel syndrome was primarily attributable to his work).

Mrs. Johnson relies heavily but vainly upon Dr. Rivero’s report. There he recounted her work activities as described to him by Mrs. Johnson. Nowhere in the report did Dr. Rivero say that he considered that those activities could have caused her condition. In the part of his report labeled “diagnosis,” Dr. Rivero simply quoted from a medical text on the treatment of athletic injuries that listed a variety of possible causes for the carpal tunnel syndrome. There was no reference to evidence connecting any of those causes to the claimant’s employment activities.

A court cannot, of course, arbitrarily set aside findings of the Industrial Commission. It cannot substitute its judgment for that of the Commission and must respect permissible inferences the Commission may have drawn from the evidence. (City of Chicago v. Industrial Com. (1975), 60 Ill. 2d 283, 286.) A court must, however, set aside a finding of the Commission which is contrary to the manifest weight of the evidence. We conclude that the circuit court here properly held that the Commission’s finding in favor of the claimant was contrary to the manifest weight of the evidence. Mrs. Johnson’s injury or condition was not shown to be traceable to a definite time, place and cause, and there simply was not evidence to show that her work activities caused her physical problem.

For the reasons g£ven, the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.