author: MR. JUSTICE CLARK

text:
    (No. 54227.
    SHIRLEY SCHLESSINGER et al., Appellees, v. SIDNEY R. OLSEN, Recorder of Deeds, et al., Appellants.

      Opinion filed September 30, 1981.

      Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Stuart D. Gordon and James F. Henry, Assistant State’s Attorneys, of counsel), for appellants.
    Bilandic, Heistein, Richman, Hauslinger & Young, Ltd., of Chicago (Harry A. Young, Jr., of counsel), for appellees.
    Sonnenschein, Carlin, Nath & Rosenthal, of Chicago (Duane C. Quaini, William T. Barker, Jeffrey Lennard, and William G. Crimmins, of counsel), for amici curiae National Association of Independent Insurers and the American Insurance Association.
   MR. JUSTICE CLARK

delivered the opinion of the court:

On September 29, 1978, the plaintiffs, Shirley Schlessinger and Portia Kern, filed a complaint in the circuit court of Cook County challenging the constitutionality of an amended version of the Real Estate Transfer Tax Act (the Act) (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 1003). This court had previously declared unconstitutional an earlier version of the Act. (See Saltiel v. Olsen (1979), 77 Ill. 2d 23.) The plaintiffs alleged in the six-count complaint that they were representing all others who had paid the tax, or, alternatively, all Illinois taxpayers.

The plaintiffs made a motion for a preliminary injunction or a temporary restraining order and for class certification on January 16, 1979. The defendants then moved to strike and dismiss the complaint. On April 6,1979, the judge denied the motion to strike and dismiss and issued a preliminary injunction. In the same order, the trial judge had made findings certifying the action as a class action. These findings were stricken from the order, however. The plaintiffs again moved for class certification, and the defendants moved for reconsideration of their motion to strike and dismiss the complaint. On April 17,1979, the trial judge denied the motion seeking class action certification based on defendants’ objection that any class certification would be premature until discovery was completed. Thereafter, on May 22, 1979, the trial judge granted the motion to reconsider, vacated the order of April 6, 1979, and granted defendants’ motion to strike and dismiss the complaint. That order was appealed by the plaintiffs. The appellate court vacated the circuit court’s judgment and remanded the cause “for determination of the certification issue prior to any final judgment on the merits.” (89 Ill. App. 3d 583, 591.) We allowed the defendants’ petition for leave to appeal. 73 Ill. 2d R. 315.

The defendants assert that the appellate court erred when it raised, sua sponte, the fact that the cause had not yet been certified as a class action and ordered that the circuit court make that determination prior to making any final judgment on the merits. Additionally, the defendants assert that the appellate court’s decision conflicts with this court’s decision in Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44.

The plaintiffs contend that, under the facts of this case, the appellate court’s decision was correct. The plaintiffs argue that because this action was brought on behalf of those persons who have paid the tax, as one class and, alternatively, on behalf of all State taxpayers as another class, the appellate court was correct to hold that, before a decision on the merits could be made, the parties who would be affected by the decision had to be definitely established. Also, argue the plaintiffs, the appellate court was correct to vacate the trial court’s order, because, had the appellate court reversed and remanded, the trial court might have entered judgment for the individual plaintiffs without ever deciding the class-certification issues. Further, the plaintiffs argue that the appellate court’s decision is correct because it is consistent with section 57.3(a) of the Civil Practice Act, which provides:

“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it may be so maintained and describe those whom the court finds to be members of the class. This order may be conditional and may be amended before a decision on the merits.” (Ill. Rev. Stat. 1977, ch. 110, par. 57.3(a).)

The appellate court stated: “An implicit corollary to the right to amend is that some decision on class certification must be made prior to proceeding on the merits. The statute provides that this finding be made ‘as soon as practicable after the commencement of an action.’ Logically, that means prior to ruling on a motion which is dispositive of the merits of the action.” (89 Ill. App. 3d 583, 588.) Finally, the plaintiffs argue that the appellate court was correct to vacate the trial court’s order, rather than simply certify the class, because the issues relating to class certification had not been briefed, and would need to be, they claim, before the appellate court would be justified in deciding the issue.

The issue thus presented is whether a trial court must decide the class-certification question before it may entertain a motion to dismiss. Our primary concerns with regard to this issue are to conserve judicial resources, to prevent piecemeal litigation, and to provide for the smooth functioning of class actions. It is clear from this court’s decision in Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, that where the question of certification of the class is the initial question raised, the question of whether a valid cause of action has been stated is necessarily subsumed in the certification question. (72 Ill. 2d 44, 48-49.) Thus, on appeal, both questions may be reviewed together. (Accord, Steward v. Allstate Insurance Co. (1980), 92 Ill. App. 3d 637,644; Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 590; Board of Education v. Greater Peoria Sanitary & Sewage Disposal District (1980), 80 Ill. App. 3d 1101, 1105.) The appellate court in this case has held that the converse should be true also: that is, where the question arises of whether a valid cause of action has been stated, the question of whether a proper class action is present must be decided, either before, or at least simultaneously with, the question concerning a cause of action.

We do not quarrel with this rule; in fact it makes good sense and complies with all the concerns mentioned above. We do not, however, see how it could be said to be required. For one thing, the defendant will file a motion to dismiss the complaint for failure to state a cause of action. The issue of class certification will not even be broached by the motion to dismiss. Instead, it will be raised by the plaintiff. (See Forde, Illinois’s New Class Action Statute, 59 Chi. Bar Rec. 120, 128 (1977).) Also, as here, discovery concerning the prerequisites of a class action (see Ill. Rev. Stat. 1977, ch. 110, par. 57.2) will not have been completed. Thus, while a motion to certify a class, if granted, presupposes that a valid cause of action has been stated (Landesman), a motion to dismiss for failure to state a cause of action is not dependent on a decision on the class-certification issue, since no class action can proceed unless a cause of action is stated. In the first instance, the two questions are inextricable; in the second instance, they are separate questions which would be raised by different parties. (Of course, if a motion to certify is denied, the issue of a valid cause of action as to the named plaintiffs is unaffected. If a motion to dismiss is denied, the trial court would simply proceed to consider the certification issue.)

The situation present here, moreover, is distinguishable from the situation discouraged by the Supreme Court, where, in certifying a class action, a trial court makes the determination that the plaintiff is likely to prevail on the merits. (Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140; American Pipe & Construction Co. v. Utah (1974), 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756.) In those two cases, the court looked with disfavor upon the practice of putative members of a class awaiting developments in a trial or even final judgment before choosing to join a class. The court stated in American Pipe:

“This situation — the potential for so-called ‘one-way intervention — aroused considerable criticism upon the ground that it was unfair to allow members of a class to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one. The 1966 amendments [to Rule 23 of the Federal Rules of Civil Procedure] were designed, in part, specifically to mend this perceived defect in the former Rule and to assure that members of the class would be identified before trial on the merits and would be bound by all subsequent orders and judgments.” (414 U.S. 538, 547, 38 L. Ed. 2d 713, 723, 94 S. Ct. 756, 763.)

Even though it is true, as the appellate court pointed out, that if a motion to dismiss a complaint is granted prior to certification, other suits may be brought by parties other than the original named plaintiffs, that is a risk that the defendant assumes by filing a motion to dismiss. In the instant case, the trial judge did not make an unbidden determination that one party was likely to prevail on the merits. Rather, the trial judge decided a motion raised by the defendant. It was appropriate to do so because it would be expensive and wasteful of time and effort to permit discovery to proceed on the certification issue if the trial judge was of the opinion that no valid cause of action had been stated. As amici point out in their brief, the time and expense consumed through discovery, litigating the requirements for certification, and notification of class members, may all be avoided by a prompt consideration of a motion to dismiss the complaint. We think the following statement of the district court in Garcia v. Rush-Presbyterian-St. Lukes Medical Center (N.D. Ill. 1978), 80 F.R.D. 254, 260, is applicable to this case:

“Rule 23(c)(1), Fed. R. Civ. P., requires that [a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.
Recent decisions in this circuit and elsewhere have expressed a strong preference for early certification as required by the explicit language of the rule. See, e.g., Larionoff v. United States, 175 U.S. App. D.C. 32, 36-37, 533 F.2d 1167, 1182-83, aff'd, 431 U.S. 864, 97 S. Ct. 2150, 53 L. Ed. 2d 48 (1977); Jimenez v. Weinberger, 523 F.2d 689 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S. Ct. 3200, 49 L. Ed. 2d 1204 (1976). It has been suggested that the rationale of these cases, if carried to a logical extreme, would require certification to precede even disposition of motions under Rule 12. Comment, Developments in the Law of Class Actions, 89 Harv. L. Rev. 1318, 1421 (1976). However, where, as here, defendants’ summary judgment motions allow the court to explore and define the proper range of judicial inquiry on the allegations of the complaint, disposition of those motions before certification is appropriate.”

Therefore, where a motion to dismiss is made by a defendant, thereby placing in issue the sufficiency of a complaint, a trial court need not delay deciding the motion until the certification question has been resolved. This rule in no way diminishes the statutory responsibility of a trial court to decide the class-certification issue “as soon as is practicable”; it simply recognizes that the important interests of time and efficiency are served better by a prompt determination of a motion to dismiss than by deferring a decision until after the certification issue has been decided.

Accordingly, for the reasons stated, the judgment of the appellate court is reversed, the judgment of the circuit court is affirmed, and the cause is remanded to the appellate court for consideration of the issues raised there.

Appellate court reversed; circuit court affirmed; cause remanded, with directions.


source: Caselaw Access Project

author: MR. JUSTICE WARD

license: Public Domain

text:
    (No. 54181.
    JOAN ELLEN SCHOONOVER et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (Caterpillar Tractor Company, Appellee).

      Opinion filed September 30, 1981.

      Knuppel, Grosboll, Becker &: Tice, of Petersburg, for appellants.
    Forrest D. Serblin, of Peoria, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Joan Ellen Schoonover filed a claim with the Industrial Commission in December 1978 to recover for the death of her husband, Kenneth, an employee of Caterpillar Tractor Company in East Peoria. The arbitrator’s decision was that Schoonover had died of accidental injuries arising out of and in the course of employment, but the Industrial Commission reversed his decision. The circuit court of Peoria County confirmed the action of the Commission, and the claimant appealed directly to this court under Rule 302(a) (2) (73 Ill. 2d R. 302(a) (2)). The only question for us is whether the finding of the Industrial Commission was contrary to the manifest weight of the evidence.

Kenneth R. Schoonover, an “emergency order filler” for Caterpillar, died at the age of 47 years. He was five feet six inches in height and weighed approximately 240 pounds. He had suffered a minor stroke three years earlier. He had also been treated for hypertension and obesity since 1972. At the time of his death, he was being treated for elevated blood pressure and was seeing his physician about every six weeks.

An emergency order filler drove an electric lift truck around the supply-parts work area, located the part called for on the requisition ticket, loaded the part on the truck, and drove back to the central work area. Emergency orders were to be filled as quickly as possible. Any orders not filled during the day shift would be filled by the second shift workers.

The decedent and the claimant had had marital problems, and on the day of his death he visited his attorney’s office at 1:30 p.m. to discuss legal papers which had been sent to him by his wife’s attorney. (They had separated four days earlier.) He complained of a stomach ache upon arriving at the plant, and his supervisor observed that Schoonover was “real pale” shortly before his shift began at 3:18 p.m. At that time, the decedent said that he was sick, that he didn’t know if he could make it through the shift, and that he might have to go to the first-aid station. He, however, began work as usual. He unplugged his battery-operated lift truck from a charger, drove it to the central work area and parked it. Once again Schoonover complained of not feeling well and said he thought he would have to go to the first-aid station. Another employee, described as a desk clerk, also was not feeling well and Schoonover, instead of proceeding to fill orders, took over the duties of the desk clerk. The record shows that, while sitting at a desk, he twice took orders over the phone and tore apart perforated requisition tickets for the order fillers. An employee testified that there was no pressure or stress involved in this process. At about 3:40 p.m., Schoonover telephoned his supervisor and told him that he was feeling worse and was going to first aid.

Schoonover did not reach the first-aid station. He was found lying face down in the locker room around 4:45 p.m. It appears that no one had seen him between the time he left for first aid and when he was found in the locker room. The locker room is about 300 feet from the central work area on a direct line with first aid. When Schoonover was found, he was not breathing and his face had turned a dark color. A company nurse was summoned and was unable to resuscitate him. She testified that his face was very dark blue and was cold to the touch. There was no pulse, the eyelids were closed and the pupils were fixed and nonreactive. She said that she judged the decedent had been dead for some time.

The decedent was taken to a hospital and was pronounced dead at 5:05 p.m. The emergency room physician testified that he believed the decedent had died some period of time before arriving at the hospital. The cause of death according to the autopsy was acute left descending coronary artery occlusion due to coronary arteriosclerosis.

Dr. Seymour R. Goldberg, a specialist in internal medicine, was called as an expert witness by the claimant. In response to a hypothetical question, which included the assumption that the hypothetical man began to fill emergency orders and later attempted to do a co-worker’s job as well as his own, Dr. Goldberg, over objection, stated that in his opinion the additional nervous strain and work caused by the absence of the co-worker may have helped to produce a sufficient amount of strain to cause a coronary occlusion. (The objection had been that there was no evidence that the decedent had been performing his own duties in addition to those of the co-worker.) On cross-examination, however, the doctor said that in responding to the hypothetical question he was assuming that the man was under some type of nervous strain or pressure, and without this assumption his opinion would be different. He went on to say that merely sitting at a desk for a half hour while tearing perforated tickets and answering the telephone would not create stress sufficient to cause a coronary occlusion. Under those circumstances, he acknowledged that his opinion would be that the coronary occlusion had no relationship to the work.

Dr. Goldberg further said on cross-examination that obesity, hypertension, arteriosclerosis, and nervous tension are “among the strongest factors that will produce a coronary occlusion or a heart attack.” Too, “hypertension is notorious for causing premature atherosclerosis and arteriosclerosis 00°. Obesity causes it. Inheritance certainly causes it.” The witness stated that arteriosclerosis is progressive in nature and develops over a long period of time.

Dr. Joshua Fierer, a pathologist, was called as a witness by the respondent. A hypothetical question propounded to him included a description of the body of the deceased when found in the locker room. His opinion, based on the coloration of the body as described by the employees, was that the man was dead at least 30 minutes before he was found and probably a significandy longer time than that. This coloration, or liver mortis, is an important factor in determining the time of death and it takes, he said, at least a half hour for the blood to settle in vessels after death and produce this effect. He testified that there was “no definite relationship” between the work activities described in the hypothetical and the cause of death.

Dr. Fierer testified, too, that the occlusion, preceded by atherosclerotic plaque breaking away in the artery, “could have occurred at any time.”

It is axiomatic that the question whether there was a causal relationship between the employment and the injury is for the Industrial Commission to determine. The Commission can draw reasonable inferences from the evidence and a court will not disregard them simply because the court might have drawn other inferences. (Stewart Warner, Datafax Corp. v. Industrial Com. (1979), 76 Ill. 2d 464.) The Commission’s finding will not be set aside unless it is contrary to the manifest weight of the evidence. (Rice v. Industrial Com. (1980), 81 Ill. 2d 544.) Upon reviewing the evidence, we consider that the finding of the Commission that the claimant failed to show that Schoonover’s death arose out of and in the course of employment was not against the manifest weight of the evidence.

The claimant contends that.Schoonover, on the day he died, assumed the duties of the desk clerk, in addition to his own, but she is unable to show in the record that the decedent filled any orders in the brief period he worked that day. Instead, the claimant relies on Bruno v. Industrial Com. (1964), 31 Ill. 2d 447, to support her contention that when an employee is found dead at the place where he had been working, assuming no eyewitness, there is a presumption that death occurred in the course of employment. Clearly there is no similarity in the circumstances here to those in Bruno. Schoonover, of course, was not in his work area, and witnesses explained his reason for leaving it. More broadly, a review of the whole record indicates death was attributable to natural causes and not to his employment.

For the reasons given, the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.


text:
    (No. 54460.
    SPRINGFIELD METROPOLITAN EXPOSITION AND AUDITORIUM AUTHORITY, Appellee, v. JOHN W. CASTLE, Director of Business and Economic Development, Appellant.

      Opinion filed September 30, 1981.

    Tyrone C. Fahner, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellant.

      Thomas W. Kelty, of Pfeifer & Kelty, P.C., of Springfield, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The plaintiff, Springfield Metropolitan Exposition and Auditorium Authority (the Authority), filed a complaint seeking injunctive and declaratory relief in the circuit court of Sangamon County. The complaint sought to prevent the defendant, as Director of the Department of Rusiness and Economic Development (the Department), from enforcing one provision of an agreement entered into by the plaintiff and defendant. It was alleged that the provision contravened section 4 of the Metropolitan Civic Center Support Act (Support Act) (Ill. Rev. Stat. 1977, ch. 85, par. 1394). After amendments to the pleadings were filed, both parties filed motions for summary judgment. The parties also entered into a stipulation of facts. After argument was heard, the trial court denied plaintiff’s motion and granted defendant’s motion. The court entered a detailed order which provided in part:

“3. Ill. Rev. Stat. ch. 85, par. 1394 (1977) is silent as regards interest income derived from the investment of bond proceeds;
4. Section 1(b)(8) of the agreement entered into between the parties does not exceed the statutory authority conferred upon defendant by Ill. Rev. Stat. ch. 85, par. 1394 (1977) and is not void ab initio;
5. Section 1(b)(8) of the agreement entered into between the parties is severable from the balance of the agreement;
6. The interest funds being sought by the plaintiff are currently available from the office building fund created by Ill. Rev. Stat. ch. 85, par. 1393 (1977);
7. The plaintiff was not operating under economic duress when it entered into the agreement with the defendant.”

The plaintiff appealed. The Appellate Court for the Fourth District unanimously reversed. (90 Ill. App. 3d 710.) We thereafter allowed the Department’s petition for leave to appeal (73 Ill. 2d R. 315). We affirm.

The facts are ably set forth in the appellate court’s opinion. In summary, the stipulation of the parties and the exhibits attached thereto reveal that the Authority was established for the express purpose of building an auditorium and exposition center in the city of Springfield. After complying with the statutory and regulatory formalities, the Department and the Authority entered into an agreement on January 7, 1977, whereby the Authority agreed to issue bonds, the proceeds of which would be used to construct the center. Until they were disbursed, the bond proceeds were deposited into an interest-bearing bank account known as the Construction Fund. The Department, for its part, agreed, pursuant to section 4 of the Support Act (Ill. Rev. Stat. 1977, ch. 85, par. 1394), to retire 75% of the debt service on the bonds, including principal and interest. At the time of entry into the agreement, and after a considerable amount of debate, a provision was included which allowed the State to credit interest earned on 75% of the bond proceeds in the Construction Fund to the debt service. Section 1(b)(8) of the agreement provides:

“The Authority:
« « tf
(8) Agrees that interest earned on an accrual basis upon bond proceeds supported by State Support Payments shall be credited to the Department annually in the form of a set-off from the request to the Department for State Support Payments for that fiscal year, said calculation to be made by the certified public accountants employed by the Authority and accepted and approved by the Department.”

The Authority strenuously objected to this provision but, due to time pressures, acquiesced to its inclusion in the agreement. Subsequently, in notifying the Department of each credit, counsel for the Authority sent a letter formally protesting crediting the Department with any interest accrued in the Construction Fund. Eventually, the Authority filed this action seeking to have the contractual provision declared illegal and void ah initio, and to enjoin the Department from enforcing it.

The issue thus presented is whether section 1(b)(8) of the agreement is a void provision. We think it is.

Section 3 of the Support Act (Ill. Rev. Stat. 1977, ch. 85, par. 1393) provides that a fund is to be created in the State Treasury from tax revenues collected under section 28 of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 28). Section 4 of the Support Act provides that “[m]oneys will be committed and distributed from the Fund to Authorities ***.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 85, par. 1394.) Finally, section 4(3) (c) of the Act specifies that “the State shall enter into an agreement with the Authority whereby the State will agree subject to annual appropriation by the General Assembly to pay annually to the Authority from the Fund, (1) an amount equal to the interest and principal cost to the Authority of amortizing revenue bonds issued by the Authority in an amount equal to the base sum [i.e., the State’s support payments]” (emphasis added) (Ill. Rev. Stat. 1977, ch. 85, par. 1394(3) (c)). Therefore, the unequivocal intent of the General Assembly is that the fund is to be the source of the State’s support payments. The Support Act does not expressly state that the fund must be the exclusive source of the State’s support payments. A specific fund has been established using one source of tax revenue for the purpose of building exposition centers, auditoriums and office buildings. No provision is made for funding other than through that one source. It is only logical to conclude therefore that the General Assembly did not foresee or anticipate that the Department would attempt to credit interest earned on bond proceeds in order to retire its share of the debt service. Thus, it is true, as the Department argues, that there is no express provision prohibiting the State from obtaining the support payments from a source other than the Metropolitan Exposition, Auditorium and Office Building Fund. Any other source of support payments, however, must properly belong to the Department and must be clearly intended to be used for that purpose. The bond proceeds which are placed in the Construction Fund herein cannot actually be said to be attributable to the State. The Authority issues the bonds and incurs an obligation to pay them. The official statement distributed by the Authority to prospective purchasers of the bonds provides:

“The Bonds are limited obligations of the Authority payable solely from the sources pledged for their payment. The Bonds do not constitute an indebtedness or obligation of the State of Illinois, or of any other political subdivision of or municipality within the State of Illinois, nor are the Bonds a general obligation of the Authority.” (Emphasis in original.)

Moreover, section 2 of “An Act relating to certain investments of public funds i>eo” (Ill. Rev. Stat. 1977, ch. 85, par. 902) provides in pertinent part:

“All earnings accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or for which such investments or deposits were made, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.”

Therefore, we conclude that, first, the Support Act provides that support payments “will,” but need not in every case, come from the Metropolitan Fund which is funded by horse-racing-tax revenues; second, the interest accrued on the bond proceeds deposited in the Construction Fund is created by bond proceeds which are an obligation of the Authority, not the Department, are intended to be used for construction costs, and must be credited to the Authority. Hence, the Department is not entitled to credit the interest to its share of the support payments. Section 1(b)(8) of the agreement is invalid and unenforceable.

We do not agree with the Department that invalidating section 1(b)(8) will cause the Authority to delay making disbursements out of the Construction Fund in order to accrue additional interest. We think the following covenant made by the Authority in its agreement with the Department adequately protects the interests of bondholders:

“The Authority:
O * #
(7) Agrees that it will exercise its best efforts and will diligently attempt to expend the proceeds of Bonds within 30 months from the date that Bonds are delivered to the purchasers thereof and in the event that Bond proceeds and investment earnings thereon are not expended on or before January 1,1980, except for delays in completion of the Project resulting from acts of God or other unavoidable casualties, the Authority, upon written request of the Department shall consult with the Department in order to remedy any failure in meeting the Project Construction Completion Date, and agree that the Department may require the Authority to retain the services of an independent consultant mutually agreed upon, to advise the Authority as to remedial actions required to complete the Project: ***.”

And, of course, creditors of the Authority are entitled to seek legal recourse if payments out of the Construction Fund are not timely. Thus we do not see how delay will automatically occur due to the invalidation of section 1(b)(8).

Due to our invalidation of section 1(b) (8), we need not, and do not, reach the second contention raised by the Authority — that it was forced to include that section due to acts of “business compulsion” perpetrated by the Department.

It is not a matter of record whether the exposition center has been completed. We will remand this cause to the trial court to determine whether there is any legitimate need for the Authority to receive the interest monies. On the one hand, if the exposition center is fully constructed, the court may decide that there is no valid or necessary use for which the monies need be paid to the Authority. On the other hand, if the Authority can establish a valid or necessary use for the monies, then the court may order the Department to pay the monies to the Authority.

Accordingly, for the reasons stated, the judgment of the appellate court is affirmed, and the cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.

Affirmed and remanded.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 54415.
    THRALL CAR MANUFACTURING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Helen Jakubielski, Appellee).

      Opinion filed September 30, 1981.

      Julie O’Connor and Robert E. Maciorowski, of Seyfarth, Shaw, Fairweather &: Geraldson, of Chicago, for appellant.
    James T. Duda and Walter D. Cummings, Ltd., of Homewood, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Pursuant to the provisions of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), Helen Jakubielski (claimant) filed an application for adjustment of claim for an alleged work-related injury suffered during her employment by Thrall Car Manufacturing Company (respondent). An arbitrator found the injury resulted from an accident arising out of and in the course of her employment and awarded compensation for a permanent and complete loss of 10% of the vision of her right eye. The Industrial Commission reversed, and the circuit court of Cook County set aside the decision of the Commission, reinstating the award of the arbitrator, We reverse the circuit court and reinstate the Commission’s decision.

The 58-year-old claimant, who had since the age of six or eight worn glasses to correct nearsightedness, testified that she had been employed by respondent as an industrial nurse for 13 years. She stated that on the morning of March 21, 1977, “I was attending to an employee, and something entered my right eye.” She experienced “much tearing and dizziness,” and shortly thereafter reported to her supervisor, was relieved of her duties, and went to see Dr. Robert J. Heidenry at the Suburban Medical Center, a clinic to which respondent’s employees requiring medical attention were sent. The doctor, she stated, treated her “for a corneal erosion which was due to a foreign body penetration.” He prescribed a medication, Neosporin, and she returned to work that same morning, but subsequently saw Dr. Heidenry “about 20 times.” She continued to work, until May 9 when she was discharged for reasons which the record does not disclose, but which her counsel indicated were not related to the March 21 incident. However, a suit, apparently alleging a wrongful discharge, was filed by claimant against respondent and was pending at the time her compensation claim was heard.

Claimant also testified that she had been unable to work in August, September and October 1977, because a corneal ulcer had developed. A written statement by Dr. Heidenry, however, indicates she “was unable to work from August 4 until August 20 due to a corneal erosion of the right eye.” Claimant testified she secured full-time employment in December 1977 as an industrial nurse, at which she was still working. She also stated she had no problem reading except for the tearing when her eye would get dry, and that she used medication up to eight times a day plus a lubricant at night; that she has a “constant irritation” which feels like a foreign body in her eye; that she was no longer under a doctor’s care, and that her condition was chronic.

While claimant stated, “I had no problems with my right eye” prior to the March 21 incident and that immediately preceding March 21,1977, it was “perfect,” there was evidence to the contrary. A typed report by Dr. Heidenry to claimant’s counsel states:

“Helen Jakubielski was examined by Dr. C. K. Fischer in this office on January 17, 1976. The diagnosis was corneal abrasion right eye. The history in-eluded a foreign body in the right eye one day previously.
Ms. Jakubielski was next seen in our office on March 21,1977, because of a foreign body sensation in the right eye. A keratitis was diagnosed bilaterally. On August 4, 1977, a diagnosis of corneal erosion or ulcer of the right eye was diagnosed and was treated with medication and also follow up over many days. Despite considerable improvement Ms. Jakubielski complained of continued tearing and light sensitivity of the right eye. A consultation was arranged with Dr. Michael Davis on September 9, 1977. He recommended continued use of lubricating medication. Another consultation was arranged at Billings Hospital on October 19, 1977.
I last saw Ms. Jakubielski on September 16, 1977. Her vision corrected to 20/25 right eye; 20/20 left eye. She had a corneal opacity in the right eye with symptoms of tearing and photophobia. No other significant pathology was noted at that time. I am currently awaiting the report from Billings Hospital regarding their treatment or recommendations.

The term “keratitis” is not defined in the record. However, Webster’s New Third International Dictionary 1237 (1971) defines it as an “inflammation of the cornea of the eye 0O°” as does Blakiston’s Gould Medical Dictionary 722 (4th Ed. 1979). An undated handwritten note bearing the name “K Fischer” appears in Dr. Heidenry’s office records. It states “foreign body left eye corneal abrasion. l/17-[here appear abbreviations which could be interpreted as indicating removal of the foreign body].” A typewritten health insurance claim form bearing an illegible signature and apparently referring to the January 1976 incident names the doctor as Charles Fischer and lists the diagnosis as “Foreign body, left eye. Corneal abrasion.” When asked on cross-examination whether the insurance form indicated claimant “received some treatment for right eye irritation on January 16, 1976,” claimant apparently agreed and stated, “I paid this. I went to Dr. Fischer on my own.” She stated she did not remember what brought about that condition. There is no reference in the record or briefs to the discrepancy between the right eye referred to in Dr. Heidenry’s report of the January 1976 incident and the reference in the insurance form report and the handwritten note to the left eye. In fact, claimant’s brief states, “The records of Dr. John Brotman reveal that the employee was treated for a foreign body in the right eye on January 16, 1976.” Since claimant, when asked about the January 1976 treatment of her right eye, responded that she had voluntarily seen Dr. Fischer about it, and since no issue is made of respondent’s repeated references to the January 1976 treatment of the right eye, we assume Dr. Heidenry’s report to be the correct one. In any event, the Commission apparently reached the same conclusion, a result clearly not contrary to the manifest weight of the evidence.

Other medical exhibits include three largely handwritten pages apparently representing notes by Dr. J. Brotman of his examination of claimant. Except for some dates commencing in 1974, these records are in part undecipherable, although commencing with January 16, 1976, they appear to make repeated reference to corneal erosion in the right eye, including one such reference on January 31,1977. Additionally claimant testified that she saw Dr. Raymond Hechter and Dr. Page, the latter at the request of respondent’s counsel. A written report by Dr. Hechter to claimant’s counsel appears in the record. It relates the results of a May 11, 1978, examination, that claimant stated a foreign body entered her right eye on March 21,1977, at work, and that she had been treated by Dr. Heidenry for a corneal erosion or ulcer. The report relates that claimant had also been seen by Dr. Michael Davis in September 1977, and that he agreed with Dr. Heidenry’s diagnosis and treatment. Dr. Hechter’s report concluded:

“Miss Jakubielski gives a defínate [sic] history of recurrent corneal erosion of the right eye. The physical examination of the cornea in the right eye appears to support this diagnosis. This is a condition which usually comes after a foreign body enters the cornea and the area involved does not seem to heal properly, that is, there can be a slough of the tissue in the area of the wound subsequent to a period of time where one would assume there was complete healing. The situation may be chronic and/or may heal itself spontaneously at any time. The present regimen of Lacrilube ointment may be all that she requires. If the foreign body sensation does not relieve itself in the next few weeks I would strongly recommend a therapeutic bandage, soft contact lens. If the situation becomes even worse, she may have to have a tarsorraphy, that is, sewing margins of right lids together for a period of time to allow the epithelial area to heal, not be irritated by normal every day blinking reflexes.”

Claimant was the only witness to testify, and there are in the record no reports from Drs. Page or Davis or from Billings Hospital. Claimant stated, however, that Dr. Page, whom she saw in March 1978, had “found a permanent corneal opacity due to a corneal ulcer that I sustained from the foreign body, and he told me to continue with my lacrilube for comfort and relief and in due time it may necessitate surgery.”

Respondent’s defense to the compensation claim is, in substance, that no foreign body penetrated claimant’s eye on March 21, 1977, but that the problem with her eye resulted from the January 1976 incident.

The Industrial Commission apparently rejected claimant’s testimony as to the March 1977 incident insofar as it related to material entering her eye at that time. Since no other evidence supported claimant’s conclusion, and the medical evidence strongly suggests otherwise, the action of the Industrial Commission in denying an award was not contrary to the manifest weight of the evidence (O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249; Gladstone v. Industrial Com. (1980), 79 Ill. 2d 236), and the circuit court erred in reversing it.

The judgment of the circuit court of Cook County is accordingly reversed.

Judgment reversed.


author: MR. JUSTICE SIMON

text:
    (No. 54292.
    UNITED FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. THOMAS C. ELDER et al., Appellees.

      Opinion filed September 30, 1981.

      Michael W. Rathsack, of Chicago, for appellant.
    John M. Burke, of Burke & Burke, Ltd., of Chicago, for appellee Thomas C. Elder.
   MR. JUSTICE SIMON

delivered the opinion of the court:

A vehicle cannot be a “replacement” vehicle under a policy of automobile insurance if the insured retains ownership of the “replaced” vehicle and if it remains operable. Although the insured may have intended to replace his insured vehicle here, he had not done so by the time of the accident. The second vehicle was therefore an “additional” vehicle within the meaning of the policy.

The United Farm Bureau Mutual Insurance Company filed a declaratory judgment complaint in the circuit court of Cook County, seeking a declaration of the coverage of a policy of automobile insurance it issued to defendant Thomas C. Elder. The policy covered the vehicle it described, a 1974 Ford pickup truck, and extended to all newly acquired automobiles for which proper notice was given to the insurer. The notice requirements were one year for the insured to notify the insurer of the acquisition of a replacement vehicle, but only 30 days to tell it of the acquisition of an additional vehicle. The policy defined “newly acquired automobile” as:

“(1) a replacement automobile that replaces and is used for the same purpose as an owned automobile described in this policy, and
(2) an additional automobile acquired by the named insured and used for the same purpose as an owned automobile provided the company insures all automobiles owned by the named insured on the date of its delivery ***.”

The pleadings, depositions and affidavits on file reveal no dispute over what happened. In 1975, Elder applied for an insurance policy on his used 1974 Ford pickup truck. After the truck was inspected, the policy was issued by United and Elder used the truck as his personal vehicle, driving it to and from work. On June 4, 1976, Elder purchased a 1970 Volkswagen van. He made the purchase to see if he and his wife would like a van. His wife, who handled Elder’s insurance matters, did not notify United. Both Elders thought that they had a year to notify the insurer of the purchase; they intended to use the Volkswagen for the same purpose as the Ford truck and so considered it a replacement vehicle.

In the succeeding weeks, Elder put the Ford truck up for sale. At times it was parked in his garage; once Elder put vegetables from his small farm in the back and parked it next to the road to sell the vegetables. A “For Sale” sign was kept in the Ford’s window. Several persons inquired about the truck, but none test drove it, and no one bought it. In the meantime, Elder occasionally drove the Ford around the farm to keep it in running condition. He did not drive it on the highway. Elder’s neighbors confirmed that the truck was displayed for sale and said that they never saw it driven on the road.

While trying to sell the Ford, Elder used the Volkswagen van the same way he had been using the Ford. On September 11, 1976, before Elder could sell the Ford, the Volkswagen collided with another car and was wrecked. The accident occurred more than 30 days after the Volkswagen was purchased, and with no notice of its purchase having been given to United. After the accident, Elder again used his Ford, for which no buyer had ever been found, as a personal vehicle and for transportation to and from work.

The circuit court granted summary judgment to the insurer, holding that the Volkswagen was an additional automobile that was not covered because the insurer had not been given timely notice o£ the acquisition of an additional vehicle. The appellate court reversed, finding a genuine issue of material fact, and remanded for a factual determination of whether the Volkswagen was a replacement or an additional automobile (89 Ill. App. 3d 918). This court granted leave to appeal pursuant to Rule 315 (73 Ill. 2d R. 315).

The sole question is whether the Volkswagen was a replacement or an additional vehicle as defined in the policy. That question is one of law, to be determined by the court. When facts are undisputed, the question of whether those facts fall within the provisions of an insurance policy is a matter of interpretation, the province of the court rather than the fact finder. (See, e.g., Treolo v. Iroquois Auto Insurance Underwriters (1932), 348 Ill. 93, 95-96.) This rule is a corollary of the more general statement that where the facts are not in dispute, their legal effect is a matter of law. (St. Paul Fire & Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209, 216.) Some courts have referred to the issue in this case as a mixed question of fact and law (see State Farm Mutual Automobile Insurance Co. v. Shaffer (1959), 250 N.C. 45, 51, 108 S.E.2d 49, 53), but that type of characterization should be sparingly applied. There is a mixed question only where there is some dispute over what happened — when the accident occurred, how the replaced vehicle was used or the like. Where the facts are clear, it is the responsibility of the court to rule on the legal effect of those facts (see Beck Motors, Inc. v. Federal Mutual Insurance Co. (Mo. App. 1969), 443 S.W.2d 200, 203), and there is no need for the services of a fact finder.

There is a five-part test for determining what is a replacement vehicle. To so qualify, the second vehicle (i) must be acquired after the policy was issued, (ii) the policy must not have expired before the acquisition, and (iii) the second vehicle must be acquired to replace the vehicle described in the policy, which must (iv) be disposed of or (v) incapable of further service at the time of replacement. (State Farm Mutual Automobile Insurance Co. v. Shaffer (1959), 250 N.C. 45, 52, 108 S.E.2d 49, 54; see also Beck Motors, Inc. v. Federal Mutual Insurance Co. (Mo. App. 1969), 443 S.W.2d 200,203, and cases cited therein.) Typically the dispute settles on the last two requirements. If the first vehicle is sold or repossessed, then the second can be classed as a replacement. (Nationwide Mutual Insurance Co. v. Mast (1959), 52 Del. 127, 153 A.2d 893 (second semitrailer truck a replacement where, after experimenting with both, owner allowed first truck to be repossessed).) But if the first vehicle is retained, the second is an additional vehicle unless the first is physically inoperable at the time

the second vehicle is acquired. (Young v. State Farm Mutual Automobile Insurance Co. (1973), 18 N.C. App. 702, 198 S.E.2d 54 (Oldsmobile ambulance became mechanically inoperable and Mercury ambulance to which medical supplies and emergency equipment were transferred held to be a replacement); Filaseta v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Co. (1967), 209 Pa. Super. 332, 228 A.2d 18 (Chevrolet truck held to be replacement for Studebaker truck which broke down on turnpike, was towed to garage and whose load was transferred to the Chevrolet); Merchants Mutual Casualty Co. v. Lambert (1940), 90 N.H. 507, 11 A.2d 361 (1930 Pierce-Arrow was worn out, out of repair, and not fit to be driven on the highway, and a 1937 Pierce-Arrow was held to be its replacement).) If the original vehicle is physically operable, even if it is not licensed, the second vehicle cannot be considered a replacement. National Farmers Union Property & Casualty Co. v. Nyborg (1971), 290 Minn. 191, 195, 186 N.W.2d 702, 704; Butler v. Government Employees Insurance Co. (1971), 212 Va. 174, 176, 183 S.E.2d 147, 149; Fitch v. Bye (1970), 288 Minn. 344, 350, 180 N.W.2d 866, 870; Beck Motors, Inc. v. Federal Mutual Insurance Co. (Mo. App. 1969), 443 S.W.2d 200, 205.

The object of the test is to fulfill the intention of the parties at the time they agreed to the policy. They agreed that one vehicle would be insured, but the frequent exchange of motor vehicles in our society makes it desirable for some provision for automatic continuous coverage to be included. Nevertheless, the significant factor is that the insurer agreed to insure only one vehicle at a time, and should not be required to insure more unless it explicitly has agreed to do so (as here it did, though only for 30 days after the purchase). The test also discourages the shuffling of several vehicles under a single policy, a practice that could result in burdening the insurer with widely varying and uncontemplated risks. Fitch v. Bye (1970), 288 Minn. 344, 349, 180 N.W.2d 866, 870.

Although the insured’s intention to replace a car is clearly relevant to the determination of whether the second vehicle was a replacement for the first, it is not the sole test. Mere intention to replace is not enough to turn a vehicle into a replacement automobile. (Quaderer v. Integrity Mutual Insurance Co. (1962), 263 Minn. 383, 390, 116 N.W.2d 605, 609.) Intention of the insured is important when asking why the second vehicle was acquired, but following the acquisition the insured must eliminate the risk the insurer has agreed to bear on the first vehicle before the coverage will transfer to the second as a replacement. A less stringent rule would place an almost impossible burden on the insurer to police whether the insured was in fact using more than one vehicle.

Under the five-part test, the Volkswagen was not a replacement vehicle. The Ford remained operable; in fact, Elder drove it on occasion specifically to keep it in running condition. Because he had not parted with ownership of the Ford, the Volkswagen could not be considered a replacement vehicle. It did not matter that Elder restricted the use of the Ford in the interim to his private property. Risks of operation remained even for that use, risks which United had agreed to bear and for which it was liable. Elder received the benefit of the insurance on his Ford for the time involved, and he cannot after 30 days with two vehicles also receive the benefit of insurance under the same policy for the Volkswagen.

Nationwide Insurance Co. v. Ervin (1967), 87 Ill. App. 2d 432, the only prior Illinois case on this point, is not inconsistent with this conclusion. In Nationwide, the transmission on the named vehicle went out and the insured purchased another vehicle. The named vehicle remained in the insured’s driveway, the insured claiming that he did not have the $75 necessary to repair the transmission. The appellate court held that the second vehicle was not a replacement. There was evidence that the named insured had not intended to replace the named vehicle with the second car and so it could not be considered a replacement vehicle even if the named vehicle was inoperable. Buf in addition the question of operability should not be seized upon as a shortcut for the full test of replacement. Minor problems with a named automobile do not convert an additional automobile into a replacement. See Fitch v. Bye (1970), 288 Minn. 344, 350, 180 N.W.2d 866, 870 (“It is not difficult to imagine the factual disputes which would emerge if 0(9 * the insured were permitted to secure coverage for a replacement vehicle simply because the described vehicle had a flat tire, a dead battery, or had run out of gasoline”).

The Volkswagen was an additional automobile under the policy. No proper notice was given, and so it was not covered. United had no duties with respect to it.

The judgment of the appellate court is reversed, and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 54091.
    GLASCO ELECTRIC COMPANY, Appellee, v. THE DEPARTMENT OF REVENUE, Appellant.

      Opinion filed September 30, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield (Joseph D. Keenan III, Special Assistant Attorney General, of Chicago, of counsel), for appellant.
    Brown, Hay & Stephens, of Springfield (Edward J. Cunningham and Mark H. Ferguson, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

In 1977, the Department of Revenue conducted an audit for the tax years 1974 through 1976 of the Glasco Electric Company (Glasco), a Missouri corporation which acts as a distributor in Illinois for lighting equipment and electrical supplies. Following the audit, the Department issued a notice of tax liability on November 18 which declared that Glasco owed $22,802.85 in unpaid taxes, penalties and interest. Upon the company’s request, a hearing was held on April 18, 1978, before a Department officer at which Glasco’s objections to the tax assessment were presented. The Department rejected Glasco’s challenge and on August 8 issued a final notice of deficiency for the full amount claimed. A complaint for review of this administrative decision was timely filed under the Administrative Review Act in the circuit court of Sangamon County on September 13 (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.). Seventy-seven days later, on November 29, 1978, Glasco filed an appeal bond which was approved by an order of the court. The Department’s answer to the complaint was filed on December 20,1978. No action was taken by the court or by either of the parties until November 1, 1979, when the Department filed a motion to dismiss the action. The Department contended that Glasco’s failure to file an appeal bond within 20 days after the filing of a complaint, as section 12 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 451) requires, was a jurisdictional prerequisite to deciding the appeal. After a hearing on the Department’s motion, the circuit court dismissed the appeal and entered judgment in favor of the Department in the amount of $22,332.22. The appellate court reversed (87 Ill. App. 3d 1070), holding that the 20-day requirement for the filing of an appeal bond was not jurisdictional and holding, too, that the Department had waived its right to seek dismissal of the complaint. We granted the Department’s petition for leave to appeal. 73 Ill. 2d R. 315.

The part of section 12 which has given rise to this controversy states:

“Any suit under the ‘Administrative Review Act’ to review a final assessment or revised final assessment issued by the Department under this Act shall be dismissed on motion of the Department or by the court on its own motion, unless the person filing such suit files, with the court, within 20 days after the filing of the complaint and the issuance of the summons in the suit, a bond with good and sufficient surety or sureties residing in this State or licensed to do business in this State or unless the court, in lieu of said bond, shall enter an order imposing a lien upon the plaintiff’s property as hereinafter provided. When dismissing the complaint, the court shall enter judgment against the taxpayer and in favor of the Department in the amount of the final assessment or revised final assessment, together with any interest which may have accrued since the Department issued the final assessment or revised final assessment, and for costs, upon which judgment execution may issue as in other cases. °°°” (Ill. Rev. Stat. 1977, ch. 120, par. 451.)

The Department contends that the language “shall be dismissed” in section 12 should be construed as mandatory and as jurisdictional and, accordingly, when Glasco filed its appeal bond 57 days beyond the 20-day statutory limit the circuit court had lost jurisdiction over the dispute and the court, following the statute, properly entered judgment in favor of the Department. The Department cites Randy’s House of Steele, Inc. v. Allphin (1979), 76 Ill. App. 3d 788, where this conclusion was reached in a similar situation.

We, however, consider that section 12, requiring the filing of an appeal bond within 20 days after the complaint for review has been filed, is not jurisdictional in character. Further, we judge that the right to have the appeal dismissed under section 12 was waived by the Department.

“Subject matter jurisdiction” has been described as the “power to entertain the suit, consider merits and render a binding decision thereon; ***.” (General Investment Co. v. New York Central R.R. Co. (1926), 271 U.S. 228, 230, 70 L. Ed. 920, 921, 46 S. Ct. 496, 497. See also Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321; Faris v. Paris (1966), 35 Ill. 2d 305.) Article VI, section 9, of the Illinois Constitution specifically empowers circuit courts to “review administrative action as provided by law.” (Ill. Const. 1970, art. VI, § 9.) The Use Tax Act, under which the plaintiff’s tax liability was founded, adopted under section 12 of the Act, by incorporation (Ill. Rev. Stat. 1977, ch. 120, par. 439.12), section 12 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 451), which provides for review of administrative orders. In addition to adopting the provisions of the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.), this section provides that the “Circuit Court of the County wherein the taxpayer has his principal place of business, or of Sangamon County in those cases where the taxpayer does not have his principal place of business in this State, shall have power to review all final administrative decisions of the Department [of Revenue] in administering the provisions of this Act (Ill. Rev. Stat. 1977, ch. 120, par. 451). Accordingly, when Glasco, a Missouri corporation filed its complaint within 35 days after it received a copy of the Department’s decision (Ill. Rev. Stat. 1977, ch. 110, par. 267) the circuit court of Sangamon County was properly vested with jurisdiction to entertain the plaintiff’s appeal from the Department’s final notice of tax deficiency.

Thus, there can be no question that, prior to the expiration of the 20-day period following the filing of the complaint, the circuit court had jurisdiction. The question that arises is whether the court was divested of jurisdiction when the plaintiff’s bond was not filed within 20 days. In construing a statute it is of course fundamental that we seek to ascertain the legislature’s intention. We consider that the Department correctly contends that viewing the language “shall be dismissed” in “the context of the entire statute, looking particularly to the purpose of the legislation” (Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, 103), the provision that a bond is to be filed within 20 days is to be construed as mandatory. (See also Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21; In re Armour (1974), 59 Ill. 2d 102, 104.) This construction is required to protect the Department’s interest against a taxpayer’s dissipating or otherwise disposing of assets while the review before the circuit court is pending. This, we judge, was certainly the legislature’s intent. We do not, however, deem that it was the legislative design to make the bond-filing provision of section 12 jurisdictional. This conclusion is consistent with those rules of statutory construetion under which courts liberally construe a right to appeal so as to permit a case to be considered on its merits. See 3A. Sutherland, Statutes and Statutory Construction § 67.08 (4th ed. 1974).

A contention that a court does not have jurisdiction over the subject matter is essentially a claim that the court is without power or authority to consider or to act on a case before it other than to dismiss it. This court said in Galvin v. Galvin (1978), 72 Ill. 2d 113, 119, that it was axiomatic that a court without jurisdiction to proceed in an action lacks the power to enter orders incident to that action. Section 12 specifically not only empowers but directs the court, upon dismissal for failure to file a bond, to enter a judgment in favor of the Department in the amount of the final assessment plus accrued interest. If a failure to file a bond within 20 days after the filing of a complaint were intended to have jurisdictional consequences, the court would be without authority to enter such a judgment.

Too, it is fundamental that the lack of subject matter jurisdiction in a court cannot be waived. (See, e.g., People exrel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 105.) Here as an alternative to filing a bond, the court, under section 12, may impose a lien on the plaintiff’s property in the amount of the Department’s tax assessment (Ill. Rev. Stat. 1977, ch. 120, par. 451). If the requirement of filing of a bond were jurisdictional, this requirement could not be waived and the court given authority to impose a lien in lieu of an appeal bond.

The Department seeks to answer this conclusion by arguing that the legislature had the power to have made the filing of a bond a matter of jurisdiction. We, however, are concerned with determining the legislature’s intention and not its powers.

Thus regarding the filing-of-bond provision in section 12 as mandatory but not jurisdictional, we consider next Glasco’s contention that the requirement that it file a bond within 20 days after the filing of suit was waived by the Department. (See In re Custody of Sexton (1981), 84 Ill. 2d 312; Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99.) The record shows that after Glasco had failed to file the appeal bond within the 20-day period it received a phone call from the Illinois Attorney General’s office stating that a bond had not been filed and approved by the court. It was then agreed that Glasco would submit a bond for filing at the end of November 1978. When the bond was obtained by Glasco its contents were read over the phone to an assistant Attorney General and he approved the bond. Before the bond was filed, the Attorney General stated that it would not be necessary to have a hearing on the bond’s approval, asking only that a copy of the bond and the court’s order approving it be sent to the Attorney General’s office. After the bond was approved by the circuit court of Sangamon County on November 29, 1978, a copy was forwarded to the Attorney General. The Attorney General filed an answer to the plaintiff’s complaint on December 20. It was more than 10 months later that the Attorney General moved to dismiss the appeal for failure to file an appeal bond within the 20-day period.

Glasco cites, without contradiction, a number of cases in which the Attorney General in a similar course of conduct permitted the filing without protest of bonds by taxpayers though the 20-day filing period had expired. In those cases, there were no motions by the Attorney General to dismiss the suits in the circuit court.

Based on the record in this proceeding, we hold that the mandatory requirement that the plaintiff file a bond within 20 days after filing a complaint in the circuit court was waived.

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

Judgment affirmed.


author: MR. JUSTICE CLARK Mr. JUSTICE RYAN,

text:
    (No. 53095.
    GLOBE CAB COMPANY et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (Orval McCabe, Appellee).

      Opinion filed September 30, 1981.

      Samuel J. Ruffolo, of Chicago, for appellants.
    Cohn, Lambert 8c Ryan, of Chicago (Stanford L. Lambert, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Orval McCabe (claimant) filed a claim against Red Top Cab Company and Globe Cab Company (respondents) under the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.) to recover for injuries he sustained when an automobile hit the cab he was driving. After a hearing, the arbitrator denied the claim for compensation because the relationship of employee and employer did not exist between claimant and respondents. The Industrial Commission, without hearing additional testimony, found that the relationship of employee and employer did exist and reversed the arbitrator’s decision. The circuit court of Cook County confirmed the Commission’s decision. Respondents appealed to this court under Supreme Court Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

The only issue before the court is whether the claimant was an employee of Red Top Cab Company (Red Top) or Globe Cab Company (Globe), rather than an independent contractor.

At the hearing before the arbitrator, the claimant testified he was employed as a cab driver by Red Top on December 27, 1972, the date of the accident. Claimant testified that on April 5, 1971, he filled out an application with Red Top and signed a “Cab Leasing Agreement.” The lease provided the following pertinent provisions:

“1. The Company agrees to rent to the Lessee a taxicab, if available, to be used only in the taxicab business. Said cab is to be operated for hire in the City of Chicago, Illinois and its surrounding territory.
3. The Company agrees to provide the taxicab in acceptable operating condition. Lessee agrees to purchase all of the gasoline necessary for the operation of the taxicab.
4. Lessee agrees to report to the Company any mechanical defects or damage to said taxicab.
5. In the event of damage or destruction of the taxicab and/or its equipment from any cause whatsoever °°°, the said Lessee agrees to pay the Company forthwith the cost of repairing or replacing the damaged taxicab and/or its equipment.
*#*
7. Lessee agrees to furnish the Company a daily report setting forth a true and correct statement of the total of all fares procured by said Lessee during lease period. Lessee shall pay his rental to the Company on a daily basis. The minimum daily rental shall be $5.00.
8. If the leased taxicab is seized by authority of law while under the operation or control of the Lessee, Lessee agrees to pay all charges for releasing the taxicab and all costs attendant thereto.
9. This lease is agreed to be personal in nature and Lessee agrees not to sublease said taxicab to anyone else.
10. Lessee agrees to report all accidents to the Company immediately in writing, giving all information including the names and addresses of all witnesses and agrees to actively cooperate in the investigation and defense of any claims growing out of the same whenever called upon by the Company or its representatives.
* # e
13. The Company shall accept no responsibility for injury to Lessee resulting from the use or operation of said automobile or taxicab or while the same is in the possession, either actual or constructive, of the Lessee.”

The lease was also signed by “Chicago Red Top Cab Company, Lessor” through the signature of the overseer. Claimant, furthermore, posted a $100 bond with Red Top.

Claimant testified he had to pay for the cab six days a week even though he actually drove it fewer times. However, if he called the Red Top overseer in advance to tell him he would not use the cab on a certain day, the overseer might give the cab to someone else on that date and not charge the claimant. Claimant, moreover, said because he paid for six days a week, he was entitled to first preference on getting a cab each day.

Claimant also testified he would go to the Red Top station to pick up the cab he would drive. The overseer set the hours for the shifts, and claimant’s shift was from 4 p.m. to 4 a.m. Claimant stated that although he was not required to sign in or punch in when he arrived, “they’d just see you.” Claimant’s cab would be driven by someone else in the previous shift, so claimant would have to wait for that driver to return with the cab and refill it before he could take it out on the streets. If the previous driver was late, he would pay claimant a late fee. A waiting driver usually expected a late fee of $5 because that is the amount he might have earned.

Furthermore, claimant testified he usually drove the same cab every shift. His cab was red and white and had a picture of a red top on it. The company’s phone number and the words “Red Top” were printed on the cab. On the dashboard inside the cab, claimant’s and Globe’s licenses were displayed.

The cabs, claimant continued, were not inspected between shifts. When he left the station, he would look for passengers on the streets and he could drive anywhere in Chicago. Although his cab was equipped with a two-way radio, claimant never used the radio. He would leave it on in case of an emergency at home. He would never take the cab home.

Claimant also stated that drivers were not responsible for repairs. If his cab needed repairs, he would take it to the garage at Red Top. Routine maintenance was also performed by Red Top.

Moreover, claimant testified that when a driver returned his cab to the station he was required to refill it and pay for the gas. Claimant stated that, when he first started working, the overseer told him to buy his gas at Red Top unless he needed it on the street. There were gas pumps located in the same building Red Top occupied, but claimant did not know whether the pumps belonged to Red Top or to a washrack company also in the building. At one point in his testimony, claimant stated he bought oil at Red Top, but later he said he did not recall whether he or Red Top paid for the oil.

Claimant also had to pay the overseer for his lease at the end of each shift. Claimant would earn approximately $50, and after he paid for gasoline, he would pay the overseer $17. Red Top did not withhold social security or Federal withholding tax.

Claimant testified the drivers were required to be courteous. In addition, all passengers’ complaints went through the Vehicle Commission, not Red Top.

George Robashko also testified at the hearing before the arbitrator. He had been a driver for Red Top for 15 years prior to claimant’s accident. When he first began working, he filled out an application similar to the one claimant filled out. Ten years later he signed a lease similar to the one claimant signed. He also paid a $100 bond.

Robashko testified the overseer at Red Top was responsible for hiring drivers and distributing cabs. The overseer gave the new cabs to the drivers with the fewest accidents. A driver would call the overseer to arrange a day off so he might give the car to another driver and not charge the scheduled driver. He also collected money from the drivers and fired them if they abused their cabs.

He further testified that the drivers had to pay for their cabs six days a week regardless of the number of days they actually drove. There was no minimum number of hours the drivers had to take the cabs out. He stated that if a driver was late in returning his cab, he had to pay the waiting driver $5, a late fee established by the drivers themselves. The drivers, furthermore, did not have to report their total fares to Red Top. Robashko also said the drivers were required to keep their cabs neat and clean and to be courteous to passengers.

At one point Robashko testified he could drive anywhere, but could not pick up fares in the suburbs. Later he stated if he drove to the suburbs, he would call the operator on the two-way radio for a rate or for directions. He said “first suburbs” are a “straight meter” and “second suburbs” are a “flat rate.” There was no liability insurance for the cabs in the suburbs.

Each cab, Robashko continued, was equipped with a two-way radio. He stated that a call “comes out of the radio room up in Evanston.” Evanston Red Top is affiliated with respondent. Drivers were not required to take calls on the radio to pick up passengers, but Robashko had taken such calls.

Robashko continued that day drivers had to bring their cabs into the station for mechanical work. Because the Red Top garage closed at 5 p.m., night drivers took their cabs to a certain garage outside of Red Top for repairs. He stated that if the cab broke down on the street, a supervisor “took care of you” by performing any service necessary or by towing the cab and providing the driver with another cab, if one was available, to finish his shift. If another cab was unavailable, the driver would take off the rest of the night. In that event, if he had only driven a few hours, the driver would not be charged at all; however, if he had driven eight hours, for example, he would be charged for eight hours’ use.

If the driver was involved in an accident which was not his fault, Red Top would repair the cab. If he had caused an accident, Red Top would send the cab to a body shop for repairs and require the driver to pay for the damage. Drivers had to submit accident reports to Red Top regardless of fault.

Robashko testified each driver had to leave a full tank of gasoline for the driver on the next shift. There was no rule that drivers had to buy their gasoline at Red Top. The gas station there is not owned by Red Top. Robashko stated he bought his gasoline “at the gas station where [he parks].” He did not have to pay for oil.

Moreover, at the end of his shift, Robashko paid the fee for his cab. He paid his own income tax, and no social security or Federal employment tax was withheld by Red Top.

Sam T. Levine testified he is the secretary-treasurer of two separate entities, Globe and Red Top Cab Association, and an officer of the Evanston Red Top Cab Company, the Lincolnwood Red Top Cab Company, and the Skokie Red Top Cab Company. Levine testified there is not and has never been a “Red Top Cab Company.” This, he maintains, is true even though the “Cab Leasing Agreement” states that the “Chicago Red Top Cab Company” is the lessor; a 1970 lawsuit filed in Federal district court named “Chicago Red Top Company” as a party defendant along with the Evanston, Skokie, and Lincolnwood Red Top companies; and Levine himself signed his name as secretary of the “Chicago Red Top Cab Co.” on a consent decree in the same 1970 case.

Levine also testified Red Top is a “[corporation used for owners of taxicab licenses in Chicago.” Red Top has an agreement with the owners of the cabs to lease them to drivers. Apparently, 12 corporations own the cabs. Levine stated that Red Top’s functions are to “give the owners a uniform color scheme,” to keep “abreast of all new rules that the Commissioner has to offer all the cab drivers,” and to “see that the owners have insurance ***.” Red Top owns nothing and employs only a secretary-treasurer, a president, an overseer, two supervisors, and a mechanic. Red Top controls 34 cabs and operates 26 of them on the street. All of the cabs are red and white and have the words “Red Top Cab Association” printed on them. In addition, the owners pay a certain fee per cab for the cab stands.

Levine, furthermore, testified that prior to working for Red Top a driver must have a State driver’s license, a city chauffeur’s license, and a $100 bond. A potential driver is told if he causes an accident, he must pay for the damage. If he causes an accident and someone is injured, he is covered by public liability insurance. If the driver has an accident which is not his fault, he does not have to pay for the damage. Red Top would cancel a driver’s lease if he had been drinking.

Red Top, he continued, does not make rules for drivers other than what is required by the leases. Drivers in Chicago do not have to drive the cabs on the streets for a minimum number of hours. There is no rule that forbids drivers from using the cabs for personal reasons. Red Top does not charge drivers for returning their cabs late. Drivers do not have to buy gasoline from any particular gas station, and Red Top does not own the gas station in the building. And although the lease provides that the drivers must report the fares collected, drivers in Chicago do not have to do this because it is not required by city ordinance.

Levine further testified that Red Top has no requirement that drivers use the two-way radios in their cars. The owners of the cabs decide whether their cabs will be equipped with two-way radios, and 26 out of 34 cabs have them.

Levine stated that 95% of the customers in Evanston, Skokie and Lincolnwood called the cab companies on the telephone for service. He said very few people would call Red Top in Chicago by telephone because the drivers would not pick them up. The phone number for Red Top in Chicago was nevertheless listed in the phone book. In addition, Levine stated the dispatcher in Evanston would broadcast to the drivers that a passenger at a certain location wanted a cab. The closest cab to the location that bid for that customer would be assigned to him.

Moreover, Levine testified that if a passenger complained about a driver, Red Top would tell him to inform the Public Vehicle License Commission. Red Top had no involvement with passsengers. He also stated that when Red Top’s former public liability insurance carrier became insolvent, Red Top defended the drivers in claims against them.

In addition, Red Top also does not pay any unemployment or withhold for social security or income tax from the drivers.

Levine further testified that Globe is a cab company that owns two cab licenses in Chicago. It has no employees.

This court considered under what circumstances a cab driver is an employee rather than an independent contractor in Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, a case similar to the one at bar. The court stated:

“No one factor may determine what the relationship is between parties in a given case. It may be necessary to consider a number of factors with evidentiary value, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done, and who provides tools, materials, or equipment. Of these factors the right to control the manner in which the work is done is the most important in determining the relationship. Greenberg v. Industrial Com., 23 Ill.2d 106; Henn v. Industrial Com., 3 Ill. 2d. 325; see also Weidner [sic], The Workmen’s Compensation Act, 1967 U. Ill. L.F. 21, 24-25.” (60 Ill. 2d 92, 97-98.)

(See Penny Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 217, 220; accord, Luby v. Industrial Com. (1980), 82 Ill. 2d 353, 358; Carter v. Industrial Com. (1976), 63 Ill. 2d 414, 421-22; M.W.M. Trucking Co. v. Industrial Com. (1976), 62 Ill. 2d 245, 254.) The court also considered whether claimant was “in the business of operating a fleet of cabs for public use” or was “in the business of simply leasing vehicles with no interest in their operation as taxis.” Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 101.

We find Red Top placed too many restrictions on the activities of claimant in driving the cab to be engaged in anything other than the business of operating a fleet of cabs for public use. Red Top determined the hours for the shifts and controlled which drivers got cabs. Claimant testified he was first instructed to buy gasoline at a gas station in the building Red Top occupied. Red Top required all routine maintenance and repairs, except for some repairs needed at night, to be performed in its own garage. If a cab broke down on the street, a supervisor would make the necessary repairs or tow the cab and provide the driver with another cab if one was available. Red Top required its drivers to be courteous to passengers and to keep their cars neat and clean. In addition, the company leased the cabs to the drivers and provided the oil. Red Top or the owners of the cabs paid for the cab stands. All cabs were red and white and had Red Top’s name and phone number printed on them. Red Top, furthermore, had a right to discharge the drivers or cancel their leases.

The court will not set aside a finding of the Commission unless it is contrary to the manifest weight of the evidence (M.W.M. Trucking Co. v. Industrial Com. (1976), 62 Ill. 2d 245, 255; Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 97), and we find sufficient evidence presented for the Commission to conclude claimant was an employee.

For these reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

Mr. JUSTICE RYAN,

concurring:

I concur in the opinion of the court. However, I wish to again suggest that a new approach be adopted for determining, in cases such as this, whether the claimant is an employee or an independent contractor. In Kirkwood v. Industrial Com. (1981), 84 Ill. 2d 14, following Professor Larson’s suggestion, we stated that the right to control the work may not be the most relevant factor in determining if a worker is an employee in a worker’s compensation case. It may be more important to consider the nature of the claimant’s work in relation to the regular business of the employer. (1C A. Larson, Workmen’s Compensation §§43.42, 43.50, at 8 — 16 to 8 — 17 (1980).) I take the liberty of quoting at length, as we did in Kirkwood, Professor Larson’s explanation of this approach:

“The theory of compensation legislation is that the cost of all industrial accidents should be borne by the consumer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection.” 1C A. Larson, Workmen’s Compensation §43.51, at 8 — 17 to 8 — 18 (1980).

In section 43.52, under the heading of “Relativity as essential part of test,” Professor Larson states:

“Note that the factor here stressed is in two parts: the nature of the claimant’s work, and its relation to the employer’s work. The 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 — for example, to say that window-washers are usually held to be employees while lawyers are usually held to be independent contractors. If I, as a private householder, call upon a window-washing company and engage it to do what amounts to one day’s work on my house, I am probably not an employer. But an industrial plant which at regular intervals keeps this same company busy doing what otherwise would be done through its own employees could be held an employer. Similarly, when I seek the services of a lawyer, on the occasion of one of my rare encounters with the legal process, the lawyer is obviously not my employee. But the same lawyer, engaged continuously by a law firm or insurance company, can be an employee.
This test, then, which for brevity will be called the ‘relative nature of the work’ test, contains these ingredients: the character of the claimant’s work or business — how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on — and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiiing of continuing services as distinguished from contracting for the completion of a particular job.” 1C A. Larson, Workmen’s Compensation § 43.52, at 8 — 19 to 8 — 20 (1980).

In Kirkwood we refused to abandon the right-to-control test in favor of the relative-nature-of-the-work test for the practical reasons therein stated. Also in that case, as in this, the briefs had not urged or considered the advantages and disadvantages of the two approaches. I would welcome an opportunity to consider a case in which the briefs thoroughly analyze the comparative merits of the two approaches.


author: MR. JUSTICE MORAN

text:
    (No. 54710.
    INTERNATIONAL HARVESTER COMPANY, Petitioner, v. RICHARD P. GOLDENHERSH, Judge, et al., Respondents.

      Opinion filed September 30, 1981.

      Philip W. Tone and Robert T. Markowski, of Jenner & Block, and Seymour W. Croft, of Chicago, and Aubrey M. Daniel III and William E. McDaniels, of Williams & Connolly, of Washington, D.C., for petitioner.
    Cook, Shevlin & Keefe, Ltd., of East St. Louis (Bruce N. Cook, of counsel), and Wiggins, Christian & Gamer, of Fort Smith, Arkansas (Eddie N. Christian, of counsel), for respondents.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This is an original action seeking the issuance of a writ of mandamus. In the alternative, petitioner requests that this court exercise its administrative and supervisory authority to obtain the relief sought.

Petitioner, International Harvester Company, is the defendant in six cases pending in St. Clair County. Two of the cases are consolidated and form the basis of the petition before us. In each of the two cases, petitioner had moved to dismiss the action on the grounds of forum non conveniens and had requested a change of venue. The trial judge, Richard P. Goldenhersh, one of the respondents herein, denied the motions. Petitioner then moved that the court certify the question for interlocutory review under Supreme Court Rule 308 (73 Ill. 2d R. 308). Before these motions were ruled on, petitioner withdrew each and, in its stead, filed this original action.

The issue to be determined is the availability of mandamus or the exercise of this court’s supervisory authority to correct alleged errors cited by petitioner. It is petitioner’s position that the respondent judge erred when he refused to dismiss the pending actions on the basis of forum non conveniens and refused to grant petitioner a change of venue.

The two cases, Cameron v. International Harvester Co., No. 80 — L—475, and Holtz v. International Harvester Co., No. 79 — L—1017, arose from gasoline fires in farm tractors designed, manufactured and sold by petitioner. The Cameron accident occurred near Paris, Arkansas, and the Holtz accident occurred in Monroe County, Michigan. At the time, the injured plaintiffs resided in the respective vicinities of the accidents. Petitioner is a Delaware corporation authorized to do business in Illinois. Its registered office and headquarters are located in Chicago. Petitioner also has plants or other facilities in Du Page, Rock Island, Lake, Fulton, Peoria and Sangamon counties. The tractors involved in the two actions were designed and manufactured in Illinois. Plaintiffs in both cases allege defective design.

Petitioner argues that Illinois is not an appropriate forum for these cases in that, except for evidence bearing upon the design and manufacture of the tractors, virtually all of the evidence will come from Arkansas and Michigan. All occurrence witnesses reside in those States. Witnesses regarding the maintenance and history of the tractors involved in the accident, as well as the majority of witnesses regarding each plaintiff’s medical condition and medical care, will be residents of Arkansas and Michigan. The petitioner argues that the necessity of compulsory process to secure such witnesses is strong support for its position that the cases must be brought in the State where each accident took place. Petitioner points out that the evidence relating to the design and manufacture of the tractors consists mainly of documentary evidence which could easily be transported to the States where the accidents occurred. The respondent plaintiffs, on the other hand, list in their brief an extensive number of Illinois residents whom they intend to call as witnesses and claim that 95% of the evidence will relate to the design and manufacture of the tractors and will be from Illinois. Such witnesses include present and former International Harvester employees, engineers, residents of Illinois who have experienced similar occurrences, and persons involved with safety tests on the tractors in question.

The extraordinary remedy of mandamus is only issued by this court in its sound discretion and is not a device to be employed to correct judicial errors. (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 334.) Mandamus is properly employed to direct the performance of an official duty which is ministerial. It cannot be used to direct the exercise of discretion or judgment. (Chicago & North Western Transportation Co. v. Matoesian (1981), 85 Ill. 2d 404, 406; People ex rel. Ward v. Salter (1963), 28 Ill. 2d 612, 615-16; People ex rel. Norwegian-American Hospital, Inc. v. Sandusky (1961), 21 Ill. 2d 296, 299; People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 520; People ex rel. Dolan v. Dusher (1952), 411 Ill. 535, 538.) “Where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be, he has exercised his discretion, and his action is not subject to review or control by mandamus.” People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 521.

The trial judge, in each of the cases here, weighed the facts presented by the parties as they related to the question of forum non conveniens and determined that under the circumstances of each case dismissal was not appropriate. This action was an exercise of discretion which cannot be reviewed by a writ of mandamus. Nor will it lie to correct mere judicial error. Chicago v. North Western Transportation Co. v. Matoesian (1981), 85 Ill. 2d 404, 406.

Petitioner, however, relies on People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 180, for the contention that mandamus “is available to compel the exercise of discretion” in the context of forum non conveniens. In Donovan, a circuit court judge denied a motion to dismiss a complaint, holding that the doctrine of forum non conveniens, upon which the motion was based, was inapplicable. This court, after concluding that the judge applied a clearly erroneous rule of law, awarded a writ of mandamus requiring the judge to exercise his discretion in light of the applicable legal standards. The court did not, however, direct the judge as to the manner in which to exercise that discretion. The writ simply ordered the judge to exercise his discretion in conformance with the correct rule of law. (30 Ill. 2d 178, 180-81.) We therefore find Donovan not to be supportive of petitioner’s claim.

Moreover, the court in Donovan relied on People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515. There, the trial judge denied a motion to dismiss the case, holding the doctrine of forum non conveniens inapplicable. Movants sought a writ of mandamus, arguing that the judge failed to exercise his discretion. This court, after engaging in detailed analysis of exercise versus nonexercise of discretion, concluded that mandamus was inappropriate in the area of the discretionary action of a trial judge “unless the judge refused to exercise his discretion at all.” (People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 520; see Chicago & North Western Transportation Co. v. Matoesian (1981), 85 Ill. 2d 404, 407; South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill. 2d 119, 122; People ex rel. Iasello v. McKinlay (1951), 409 Ill. 120, 124.) In the present case, the trial judge did not refuse to exercise his discretion. Petitioner seeks by this action to review the correctness of the trial judge’s exercise of discretion in ruling on its motion to dismiss under the doctrine of forum non conveniens. Such exercise of discretion cannot be reviewed by a writ of mandamus.

The correctness of the trial judge’s decision on the forum non conveniens motions may be tested by appeal. Petitioner correctly proceeded when it sought an interlocutory appeal under Supreme Court Rule 308. Petitioner did not, however, await a ruling on these motions but sought to circumvent the normal appellate process by withdrawing these motions and seeking instead a writ of mandamus. Mandamus may not be so used. People ex rel. Sears v. Romiti (1971), 50 Ill. 2d 51, 54.

We also find mandamus to be unavailable to test the correctness of the trial judge’s refusal to grant petitioner’s motions for change of venue.

Petitioner contends that it does not have a corporate residence in St. Clair County as required for proper venue in that its activities in such county do not establish it is “doing business” there. Ill. Rev. Stat. 1979, ch. 110, par. 6.

Five independent retail dealers which sell petitioner’s products are located in St. Clair County. Petitioner reimburses the dealers for half of their advertising expenses. Various sales representatives, who are employees of petitioner, regularly visit the dealers to provide a wide range of assistance and service. Two of the dealers lease computer terminals from petitioner which link them to petitioner’s warehouse for automatic inventory control and reorder of spare parts. Petitioner contends that these activities are, at most, merely incidental to the solicitation of business and do not establish “residence” in St. Clair County for venue purposes.

The respondent plaintiffs argue that the petitioner actively participates in its dealers’ operations in St. Clair County. Dealer contracts, which are entered into with petitioner annually in St. Clair County, give petitioner the right to review dealer performance. Dealers are required to honor warranties on petitioner’s products, and services performed by the dealers under such warranties are reimbursed by petitioner. Each dealer sells petitioner’s spare parts, which are delivered regularly by petitioner in St. Clair County. The respondent plaintiffs contend that the activities of petitioner are clearly sufficient to establish that it is “doing business” in the county, thereby subjecting it to venue there.

Petitioner relies on Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, and St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, for its contention that mandamus will lie to correct venue. In Mosele, the B&O Railroad, a foreign corporation authorized to do business in Illinois, was sued in Madison County. As in the present case, venue could be laid in that county only if the railroad was “doing business” there. The railroad moved for a change of venue contending that it was not “doing business” in Madison County. The motion was denied, whereupon a writ of mandamus was sought. Three grounds were asserted by the respondent as a basis for finding that the B&O was “doing business” in Madison County: (1) B&O’s occasional operation of trains in the county; (2) B&O’s use of the Madison County interchange and terminal facilities of the Terminal Railroad Association, a corporation in which B&O had a 6.25% equity interest; and (3) B&O’s solicitation of business from Madison County shipping customers. The court ruled:

“In light of the clear absence of facts sufficient to support venue in Madison County, and cognizant of the large number of similar cases pending in Madison County against the petitioner, we determine that a writ of mandamus should issue.” (Emphasis added.) (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 334.)

However, this court allowed mandamus to be employed under the circumstances in Mosele because “Petitioner, the Baltimore and Ohio Railroad Company (hereinafter referred to as B&O) is the named defendant in 32 cases now pending in Madison County.” (67 Ill. 2d 321, 324.) In the interest of judicial economy, the court chose to resolve the venue question which was involved in the majority of those 32 cases. Leave to file the petition for writ of mandamus in Gitchoff was granted based on the fact that Mosele was pending, and the cases involved “similar issues in a like context.” (St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 40.) However, in Gitchoff the issuance of the writ was denied. The fact that the court in its discretion reviewed the claims presented in these two cases by mandamus does not change the general principles underlying that remedy.

In the present case, the trial judge reviewed the facts presented by each party in support of or in opposition to venue in St. Clair County. In reviewing these facts he made a judgment and found them to be sufficient to constitute “doing business” under the venue statute. We emphasize that this is not a case where a petitioner’s right to a change of venue under the statute is clear and where the only act left to be performed is ministerial, that is, ordering the transfer of the case to a proper county. Rather, in the present case, the court must determine if the facts establish that the petitioner is “doing business” in the county. A review of the correctness of such a determination may be had by the normal process of appeal. We note that petitioner originally attempted to obtain an interlocutory review of the trial judge’s orders but unfortunately abandoned such in favor of filing this original action. Mandamus may not be used as a substitute for appeal (People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 523), nor can it be used to circumvent the normal appellate process (People ex rel. Sears v. Romiti (1971), 50 Ill. 2d 51, 54). This court has under consideration, however, an amendment to our rules that would permit a party to seek review of a denial of a motion to dismiss on grounds of forum non conveniens.

For the reasons stated, the issuance of the requested writ of mandamus is denied.

Writ denied.

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