author: MR. JUSTICE RYAN

text:
    (No. 49282.
    EVERETT ALEXANDER, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Bennie Rhodes, d/b/a Rhodes Funeral Service, Appellee.)

      Opinion filed October 6, 1978.

      James F. Gorman, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Scheffres & Scheffres and Zaidenberg, Hoffman & Schoenfeld, of Chicago (Alan J. Scheffres, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

In this workmen’s compensation proceeding the sole issue is whether the claimant was an employee or whether he was an independent contractor at the time of his accident. The arbitrator found that an employee-employer relationship existed between the claimant, Everett Alexander, and respondent, Bennie Rhodes. The finding of the arbitrator was affirmed by the Industrial Commission. The circuit court of Cook County set aside the decision of the Commission. The case is before this court pursuant to our Rule 302(a) (58 Ill. 2d R. 302(a)).

Claimant had worked as a union carpenter in Chicago for a period of 18 years. On the day of the accident he was unemployed and looking for a job. An acquaintance introduced him to the respondent, who owned and operated the Rhodes Funeral Service in Chicago. The respondent desired to have the door of the funeral parlor’s garage repaired, and asked the claimant whether or not he would be able to fix it. Claimant inspected the door, informed respondent that he could fix it, and said that it would cost “$20.00 plus materials.” The respondent advanced $20 for material to the claimant, who drove to a nearby lumber yard where he had previously done business and purchased the necessary materials to repair the door. Respondent did not tell him where to make the purchase. Claimant used his own truck and tools for the job. He did not, however, have any of his ladders with him, so he used one which he had found in the corner of the garage, and which respondent told him he could use. While he was standing on the ladder repairing a latch on the door he fell, sustaining serious injury to his arm and elbow.

The question of whether claimant was an employee at the time of his accident is the critical issue in this case. Proof that a relationship of employer-employee existed at the time of the accident is an essential element of an award under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.; Wilhelm v. Industrial Com. (1948), 399 Ill. 80, 89). On the other hand, it has long been established that an independent contractor is not entitled to compensation under the Act. E.g., Meredosia Levee & Drainage District v. Industrial Com. (1918), 285 Ill. 68.

This court has frequently held that the resolution of factual disputes is squarely within the province of the Industrial Commission, and that its determination will not be disturbed unless it is against the manifest weight of the evidence. (Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9.) However, this court has not hesitated to set aside a decision of the Industrial Commission when its finding that a person was an independent contractor and not an employee (O’Brien v. Industrial Com. (1971), 48 Ill. 2d 304) or when its finding that a person was an employee and not an independent contractor (Coontz v. Industrial Com. (1960), 19 Ill. 2d 574) was against the manifest weight of the evidence. We have examined the record in this case and are convinced that the finding of the Industrial Commission that the claimant was an employee at the time of his accident is against the manifest weight of the evidence, and should therefore be reversed.

In O’Brien, this court stated:

“This court has often held that the right to control the manner of doing the work is probably the most important single consideration in determining whether the relationship is that of an employee or an independent contractor.” (48 Ill. 2d 304, 307.)

In Henry v. Industrial Com. (1952), 412 Ill. 279, 283, this court stated:

“Other factors, such as whether compensation is on a time basis or by the job, the right to discharge, the nature of the workman’s occupation, both in terms of the degree of skiU required and in its kinship to the regular business of the employer, and the furnishing of materials, equipment or tools, are all to be taken into consideration.”

Applying these considerations to the facts of the instant case, it is clear that the evidence overwhelmingly supports the conclusion that the claimant was an independent contractor.

Generally, an independent contractor is one who undertakes to produce a given result, without being controHed as to the method by which he attains that result. (Franklin Coal & Coke Co. v. Industrial Com. (1921), 296 Ill. 329.) Thus, an independent contractor executes the work in accordance with his own ideas, without being subject to his employer’s ideas in respect to the details of the work. (Besse v. Industrial Com. (1929), 336 Ill. 283.) In Coontz, this court stated the distinction in this manner: “[A]n employee is at all times subject to the control and supervision of his employer, whereas an independent contractor represents the will of the owner only as to the result and not as to the means by which it was accomplished.” 19 Ill. 2d 574, 578.

In the instant case it is clear that the respondent did not undertake to control or supervise the details of the work done by claimant. The evidence is undisputed that he simply showed the claimant the garage door and accepted the claimant’s word that he could repair it. He then gave the claimant $20 and left the premises. He had given no instructions as to how to perform the work, how long the claimant had to work, or when he should quit. He was interested only in the result to be attained. It was the claimant who had complete discretion and control over the method and means by which to attain the result.

Claimant argues that the respondent, while not exercising actual control over the details of the job, had the right to do so, and that such a “right to control” by the respondent supports a finding of employee-employer relationship. This argument is untenable. There is no evidence in the record that respondent had the right to control the method or manner of work done by the claimant. The simple fact of the matter is that the respondent, a funeral director, hired claimant, a skilled carpenter, to perform a task wholly within the claimant’s expertise, and totally outside the scope of his own business.

This case is factually quite similar to Coontz, where the court stated: made a decision as to what the ultimate job would be, i.e., splicing the rope or replacing it, the former was left alone to do the work in any manner he chose, being answerable to Coontz only as to the end result and not as to the means by which it was to be accomplished.” (19 Ill. 2d 574,578.)
“Looking first to the task performed itself, it was quite apart from the regular business of Coontz [respondent] and it is also apparent that [claimant] was summoned to the home because of his particular skill and experience in splicing heavy ropes. *** [Claimant] was called upon to do a particular job and while it is true that Coontz [respondent] did participate in a discussion and

This court held in Coontz that the claimant was not an employee and set aside an award of the Industrial Commission, which had found that the requisite employer-employee relationship existed. In our case, as in Coontz, the claimant was engaged because of his particular skill and experience in doing a particular job, and he was permitted to do the work in any manner he chose, being answerable to the respondent only as to the end result.

Claimant places emphasis on the fact that the respondent “furnished” the ladder used by him in fixing the door. The record discloses that the claimant had all the tools he needed to repair the door with him in his truck except a ladder. The record does not establish that the ladder was “supplied” or “furnished” in the manner that an employer furnishes tools or equipment with which an employee works. The claimant testified that when he was engaged to do the work he told the respondent that he didn’t have any ladder with him and stated that the respondent “told me that he had a ladder and I wouldn’t have to go home to try to get the ladder.” Thus, the alleged “furnishing” of the ladder was an accommodation to the claimant so that he would not have to go to his home to get his own ladder, and in no way altered the fact that the claimant was engaged to perform the work as an independent contractor.

The claimant attempts to show the existence of an ongoing employer-employee relationship on the basis of his testimony that respondent told him there would be other tasks to be performed after the completion of the garage-door repair. We note that the respondent denied telling the claimant that there would be more work to be done after he repaired the garage door. However, accepting the claimant’s version, his testimony does not prove that an ongoing employer-employee relationship was contemplated. Claimant testified, “he told me he had some work he wanted done, to fix an apartment over the funeral home when he got his money together and he also said he had some painting to do.” And again, claimant testified that the respondent said, “as soon as he got his money together he would let me do that.” On cross-examination claimant answered “that’s right” to the question “And he told you there might be other work he wanted but when he got the money he would call you and let you know about it?” This testimony tends to prove nothing with regard to the existence of an employer-employee relationship. It only indicates that there may be some more work that the respondent would at some future date want the claimant to do. It does not show whether the claimant would be performing the future work as an employee or an independent contractor and is not helpful in determining the status of the claimant on the date he was injured.

There was some confusing testimony adduced on arbitration concerning the existence of a W — 2 withholding-tax form. On direct examination the claimant testified that the respondent failed to fill out a W — 2 form because “he was getting ready to fix the door and it was getting late jn the afternoon and he couldn’t get his door locked.” Ordinarily, evidence that a W — 2 form was completed, or that such a form was to be filled out, would tend to show that an employer-employee relationship was intended. Considering the record, however, the claimant’s testimony shows no such intent. Respondent testified that a W — 2 form was never discussed. And, reading the claimant’s testimony, it is clear that he did not testify that he and respondent discussed the W — 2 form or that any thought was given to the completion of such a form. Rather, his testimony was after-the-fact speculation as to why the form was not filled out, and was testified to at a time that claimant was trying to establish the employer-employee relationship retroactively. This testimony has no probative value as to the existence of an employer-employee relationship.

In summation, there is no persuasive evidence in the record to support a finding that claimant was an employee for purposes of the Workmen’s Compensation Act. The claimant was a skilled tradesman who performed a single service for the respondent quite apart from the respondent’s business. He was to be paid by lump sum for the job, rather than by the hour or piece. The fact that he purchased materials at a lumber yard of his own choosing where he had previously traded is consistent with an independent-contractor relationship. With the exception of the ladder, he used all his own tools and had complete control over the manner in which the job was performed.

The finding of the Industrial Commission that the claimant was an employee for purposes of the Workmen’s Compensation Act is against the manifest weight of the evidence. The decision of the circuit court of Cook County reversing the award granted by the Commission is accordingly affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE WARD

license: Public Domain

text:
    (No. 50259.
    KIRKWOOD BROTHERS CONSTRUCTION, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Kenneth Hagan, Appellee.)

      Opinion filed October 6, 1978.

      Heyl, Royster, Voelker & Allen, of Springfield (Frederick P. Velde, of counsel), for appellant.
    Moody & Diamond, of Decatur (Thomas H. Moody, of counsel) for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

The claimant, Kenneth Hagan, was injured when he fell from a ladder while doing carpentry work in the construction of an addition to a house. He filed an application for adjustment b.f claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) against the respondent, Kirkwood Brothers Construction. The arbitrator awarded the claimant compensation for temporary and permanent disability and for medical, surgical, and hospital expenses.

The Industrial Commission, after hearing further evidence, affirmed the arbitrator’s decision, and the decision of the Commission was confirmed by the circuit court of Christian County. The respondent appealed directly to this court under Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)). The issue raised on the appeal is whether the claimant was an employee of the respondent or whether he was an independent contractor and thus not entitled to compensation under the Act.

The accident occurred on November 24, 1975. In the fall of 1975 the respondent, a building contractor, had run a newspaper advertisement to solicit applications to install siding and do carpentry work. The advertisement itself was not offered in evidence. The claimant, a carpenter with some 16 years’ experience, together with a friend, David Vording, who also did carpentry work, went to the respondent’s office and applied for work. Prior to the job in which the accident here occurred, the claimant and Vording, who worked as a team, had worked on seven other jobs obtained through the respondent. There is no evidence that the claimant did work for any other contractor or any property owner during this period.

The job site where the claimant was injured was a house owned by Charles Guthrey. Guthrey had previously been called on by Kenneth L. Ortman, a salesman associated with the respondent, as a result of a referral from another customer. Ortman identified himself to Guthrey as a representative of the respondent, and proceeded to negotiate a written contract for the construction of the proposed addition. The contract was then submitted to the respondent and approved. No copy of the contract was placed in evidence.

Shortly before work on the Guthrey house was to begin, Ortman saw the claimant and Vording at the respondent’s office. He knew that they were expert carpenters, and that they were about to complete a job and would thus be available to start on a new one. Ortman described the Guthrey job to them, and, using a price list prepared by the respondent which showed the amount which would be paid for labor on the various components of the project, stated that the claimant and Vording would be paid $2,450 upon completion of the job. No written contract with either Ortman or the respondent was executed, but the claimant and Vording were paid through checks drawn by the respondent.

The material used on the Guthrey job was furnished by the respondent. The respondent furnished no equipment, but it does not appear that any was required except for small hand tools. As to these, the claimant and Vording supplied their own. There was no foreman regularly present at the job site, but on one occasion when Guthrey requested a change in the plans originally agreed on, Ortman came out to discuss the matter with him and with the claimant and Vording. The president of the respondent testified that it was customary for the salesman who had procured a construction contract to follow through on it. He testified further that when Ortman went out to the Guthrey site he did so as a representative of the respondent, that he had responsibilities beyond those of salesman, and functioned as an “overseer” on the job.

There is some dispute between the parties as to whether Ortman was an employee of the respondent. Ortman and two officers of the respondent testified that he was not. Ortman, of course, is not the claimant here, and it is therefore immaterial whether he should be classified as an employee for purposes of the Act. The question is rather whether he was acting on behalf of the respondent in connection with the Guthrey job. The undisputed testimony referred to above makes it plain that he was.

This court has frequently had occasion to consider whether carpenters and other persons engaged in construction work were to be regarded as employees or independent contractors. See, e.g., Lawrence v. Industrial Com. (1945), 391 Ill. 80; Henry v. Industrial Com. (1952), 412 Ill. 279; Henn v. Industrial Com. (1954), 3 Ill. 2d 325; Greenberg v. Industrial Com. (1961), 23 Ill. 2d 106; Standard Accident Insurance Co. v. Industrial Com.(1968), 39 Ill. 2d 172; Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155.

The scope of judicial review of the Commission’s decision in these cases, as in others where the claimant’s status is drawn in question, was described in Lawrence v. Industrial Com. (1945), 391 Ill. 80, 85: “[Wjhere the evidence affecting such question is undisputed and is reasonably susceptible of but a single inference, the question what relation is thereby shown to exist is one of law. If the undisputed facts permit an inference either way, *** then the commission alone is empowered to draw the inference and its decision as to the weight of the evidence will not be disturbed on review.” (See also Henn v. Industrial Com. (1954), 3 Ill. 2d 325, 327; Greenberg v. Industrial Com. (1961), 23 Ill. 2d 106, 108; Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155, 157). This principle is of course subject to the qualification that a finding by the Commission is to be set aside if it is against the manifest weight of the evidence. Lawrence v. Industrial Com. (1945), 391 Ill. 80, 84. See also 3 A. Larson, Workmen’s Compensation sec. 80.20, at 15-413, sec. 80.41, at 15-452.

Though all of the evidence which might have defined the relationship between the claimant and the respondent was not presented, to the extent that the facts were brought out they were undisputed. Under the principle of review announced in Lawrence and in the other cases cited, therefore, the decision of the Commission must be confirmed unless the facts compel an inference that the claimant was an independent contractor. Such is plainly not the case here.

Neither the circumstances in which the claimant became associated with the respondent nor the manner in which the work was performed presents conditions incompatible with the status of an employee. The respondent points out that the claimant was free to set his own hours. The significance of that circumstance is diluted, however, by the consideration that the claimant was entitled to be paid only upon completion of the job. The respondent also notes that there was no foreman continuously present at the job site. In view of the claimant’s recognized skill and experience, none was needed. (Lawrence v. Industrial Com. (1945), 391 Ill. 80, 88.) Ortman was in charge of the job, moreover, and when a substantial change in the specifications was requested by Guthrey it was Ortman, acting on behalf of the respondent, who evaluated it, not the claimant. Nor is the claimant’s use of his own tools on the job to be judged inconsistent with his status as an employee. Lawrence v. Industrial Com. (1945), 391 Ill. 80, 88.

The respondent admittedly did business as a general contractor and advertised itself as such. The claimant was not shown to advertise himself as a contractor or to maintain any office of his own. (Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155, 157.) While the failure of the respondent to deduct for withholding tax is relevant (Penny Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 217, 219), it is not decisive, as the affirmance in Penny Cab Co. demonstrates. The claimant did not work on jobs other than those obtained through the respondent. And unlike the situations presented in Henn v. Industrial Com. (1954), 3 Ill. 2d 325, 329, Coontz v. Industrial Com. (1960), 19 Ill. 2d 574, 578, and Standard Accident Insurance Co. v. Industrial Com. (1968), 39 Ill. 2d 172, 174, the work performed by the claimant was an integral part of the regular business of the respondent. See 1A A. Larson, Workmen’s Compensation sec. 45.10.

The evidentiary setting here is clearly distinguishable from that in Alexander v. Industrial Com. (1978), 72 Ill. 2d 444, also decided in this term of court, where we said there was no persuasive evidence that the claimant was an employee under the Workmen’s Compensation Act.

The respondent complains that the arbitrator permitted Vording, over objection, to answer the question for whom he was working, to which the witness replied, “Kirkwood Brothers Construction,” but refused to permit cross-examination of Vording and of an officer of the respondent as to whether there had been any conversation between Vording and the respondent on the matter. We believe that the respondent was entitled to explore the basis of Vording’s opinion, and assuming the arbitrator did err in restricting cross-examination, we are nevertheless satisfied, upon our review of the entire testimony before the arbitrator and the Commission, that the alleged error was not prejudicial.

The judgment of the circuit court is accordingly affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN MR. CHIEF JUSTICE WARD,

text:
    (No. 50363.

      In re KARL GEORGE LaPINSKA, Attorney, Respondent.

      Opinion filed October 6, 1978.

      RYAN, J., took no part.
    WARD, C.J., and UNDERWOOD, J., specially concurring.
    Philip Schickendanz, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.

      George B. Collins, of Collins & Amos, of Chicago, for respondent.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This action is brought by the Administrator of the Attorney Registration and Disciplinary Commission. Count I of the complaint alleged that respondent, Karl George LaPinska, accepted private employment which was in direct conflict with his public duties as attorney for the city of Princeton, and that he wilfully misused his official position to gain a favorable settlement of the private controversy. Counts II through V charged that respondent caused to be published various self-laudatory articles which appeared in a local newspaper.

A hearing panel of the Attorney Registration and Disciplinary Commission found respondent guilty of misconduct on each of the counts and recommended he be suspended for six months. The Review Board reversed the hearing panel’s conclusion with respect to counts II through V, but confirmed the findings as to count I. Emphasizing respondent’s flagrant misuse of public office, the Review Board recommended disbarment. Respondent excepts to the findings and recommendations which relate to count I, but admits that his conduct may warrant discipline. The Administrator does not dispute the reversal of counts II through V and, during oral argument, conceded that he does not seek discipline as severe as disbarment. Consequently, the only issue here considered is the appropriateness of the discipline which the Review Board imposed.

Respondent’s own testimony revealed the following facts. Robert E. Bird, Sr., a builder and real estate broker in Princeton, constructed a speculative home on a lot (209 East La Salle Street) which he owned. The lot measured 80 by 140 feet. A 60-foot-wide home was positioned thereon within 4 feet of the west lot line, in violation of a Princeton zoning ordinance which prohibited residences from being built closer than 10 feet from the side boundary of any lot. After construction and before selling the home, Bird, Sr., sold 10 feet along the east side of the lot to the adjacent lot owner. By doing so, he again violated the zoning ordinance.

On April 22, 1974, Bird, Sr., sold the residence to Thomas and Pauline Kutella for $33,500. At the time of sale (and at all times relevant to these proceedings) respondent was city attorney for Princeton and maintained a private practice. Respondent, as a member of the Illinois Attorneys Title Guarantee Fund, was engaged by Bird, Sr., to secure title papers on the lot. For these services, he billed Bird, Sr., in the sum of $152. The deed of sale, which was prepared by Bird, Sr.’s son, Donald Bird, an attorney, accurately described the lot as being 70 feet in width.

At a meeting of the Princeton city council in August 1974, the Kutellas, apparently irate because they had unknowingly purchased a 70-foot rather than an 80-foot lot, demanded that Bird, Sr., be charged with a quasi-criminal violation of the zoning ordinance. Respondent, in his capacity as city attorney, informed the Kutellas that they should stop by his office to sign a formal complaint. Such complaint was subsequently served on Bird, Sr., on or about August 12, 1974. No prior quasi-criminal charges had been filed against Bird, Sr. No charge was filed against the Kutellas, even though, according to the ordinance, both the person who created the violating condition and the present owner of the premises could be liable.

At the hearing on August 19, 1974, respondent appeared on behalf of the city; Donald Bird represented his father. Respondent recommended the minimum fine and apprised the court that the city had no further interest in the matter. Pursuant to this understanding, Robert Bird, Sr., pleaded guilty and was fined $10 and $5 in court costs.

Three days later, Thomas Kutella came to respondent’s office and complained of the lenient treatment which Bird, Sr., had received. Kutella informed respondent that he was aware that the ordinance provided for a continuing violation and demanded that prosecution be pursued. Respondent suggested that Kutella appear at the next city council meeting to make his position known. After further discussion that day, Kutella and respondent entered into a retainer agreement whereby respondent would represent the Kutellas in a civil action against Bird, Sr., for breach of contract and fraud arising out of the sale of the property. The agreement provided that respondent would receive a contingent fee only from any recovery in excess of the cost of the property with improvéments (approximately $43,500). The fee arrangement was for 25% over $43,500 if settled before filing suit, 33 1/3% if settled after suit was filed, and 40% if a second trial or appeal became necessary.

At the next city council meeting, Kutella stated that he wished to sign daily ordinance violation complaints against Bird, Sr. Respondent, who was present at the meeting and who would be responsible for prosecuting the quasi-criminal charges, did not inform the city officials that he also represented the Kutellas privately in the same matter.

The first of the continuing-violation complaints was prepared on the same day and served on Bird, Sr., on September 4, 1974. While respondent was representing the Kutellas in the private matter, he caused over 30 such complaints to be served on Bird, Sr. On September 5, 1974, when Bird, Sr., received the second such complaint, his son, Donald Bird, telephoned respondent and inquired why the plea agreement and payment of the fine plus costs had not disposed of the entire controversy. Respondent told Bird that the city had no further interest in the matter, but that Kutella continued to file complaints. Bird suggested at that time that respondent might have a conflict of interest, but respondent failed to acknowledge any possible conflict.

Respondent and Bird next conferred at Bird’s law office on September 19, the evening before the return date on the first of the continuing-violation complaints. Bird mentioned his father’s willingness to buy back the property from Kutella. Respondent stated that he did not think Kutella would agree to sell the property and that Kutella wanted the 10 feet to which he felt entitled. The next morning, at the courthouse, Bird again informed respondent of his father’s readiness to settle. Bird, representing his father, pleaded not guilty to the ordinance violation.

Respondent received authorization from the Kutellas to settle for between $63,500 and $68,500. On September 23, respondent met with Bird and his father in Bird’s law office. When respondent offered to settle for $68,500 (more than double the purchase price) Bird, Sr., walked out of the meeting. To document what had transpired, Bird, after his father had left the meeting, prepared a memorandum which was signed and initialed by both Bird and respondent. The memorandum recorded that the civil dispute could be settled for $63,500 provided that Kutella would sign a release of all civil actions and quasi-criminal complaints and respondent would recommend to the city of Princeton that a variance or occupancy permit be granted for the property. (A $63,500 settlement would net respondent $5,000 pursuant to his contingent-fee agreement with Kutella.)

Twice during the following week, respondent wrote to Bird using the stationery of the city attorney of Princeton. The letters informed Bird that “in the event of a settlement with Mr. Kutella,” the city would issue an occupancy permit and would entertain no further complaints against Bird’s father in connection with the zoning violations. Respondent also prepared a document which purported to absolve him of liability for representing both the Kutellas and the city. The release, which was to be signed by the Birds, stated that respondent “in no way used or threatened the use of his position as attorney for the City of Princeton in effecting a settlement [of the civil claim] ” and that the Birds did not object to the dual representation. The release was never signed by the Birds.

In a letter to respondent dated October 2, 1974, Bird rejected the settlement offer of $63,500 and terminated negotiations. On October 8, 1974, Bird filed a motion in the circuit court of Bureau County. The motion sought to withdraw his father’s original guilty plea, to dismiss for governmental misconduct the quasi-criminal charge, and to suspend respondent from the practice of law in ordinance-violation cases. Upon receiving this motion, respondent withdrew from representing the city in such cases and withdrew as attorney for the Kutellas. (After respondent withdrew from the case, the civil dispute was settled by Bird, Sr., purchasing the home from the Kutellas for $41,000.)

Donald Bird testified before the hearing panel that he had, on two occasions, informed respondent of the conflict of interest. He agrees with respondent that the first occasion was during their telephone conversation on September 5, 1974, at which time he asked whether respondent was representing the Kutellas in a private capacity. When respondent indicated that he was considering doing so, Bird suggested that such action would be a breach of professional ethics in light of the fact that respondent had been employed and paid by Bird’s father in connection with the very same real estate transaction. (By the date of this telephone conversation, respondent had already entered into the retainer agreement with Kutella.)

Bird stated that he again objected to respondent’s conflict of interest during their meeting in Bird’s law office on September 19. When respondent told Bird that he was considering representing the Kutellas in a fraud action against Bird’s father, Bird advised respondent that an attorney was prohibited from undertaking private representation in connection with a matter which had come to his attention through his public office. Bird testified that, at that point, he decided to document the extent of respondent’s dual representation and the extent to which respondent would use his office as city attorney for the benefit of a private client. All of Bird’s subsequent negotiations with respondent were directed exclusively toward documenting respondent’s abuse of office.

Respondent has maintained, both before the hearing panel and in this court, that he believed that representation of both the Kutellas and the city of Princeton created no inherent conflict. He maintains that his actions on behalf of the Kutellas and the city had a congruent purpose — to enforce the ordinance. We find respondent’s position unsupportable both in the law and on the facts.

A congruence of purpose in the representation of multiple parties may not avert conflicts of interest. A conflict of interest arises whenever an attorney’s independent judgment on behalf of a client may be affected by a loyalty to another party. “[The rule against representing conflicting interests] is a rigid one, designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties. He should undertake no adverse employment, no matter how honest may be his motives and intentions.” (People v. Gerold (1914), 265 Ill. 448, 477.) Moreover, an attorney who represents the public must be particularly wary of potential conflicts because he is measured not only by the honesty of his intentions and motives, but by the suspicion with which his acts may be viewed by the public. “ ‘A public officer owes an undivided duty to the public whom he serves, and is not permitted to place himself in a position which will subject him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interests of the public.’ ” (In re Becker (1959), 16 Ill. 2d 488, 494, quoting 43 Am. Jur.Public Officers sec. 266, at 81 (1942).) Therefore, we look not toward the congruence of interests, but toward the potential for diverging interests.

The serious impropriety of an attorney accepting private employment with respect to matters in which he has substantial responsibility as a public official is well established. (See Annot., 17 A.L.R.3d 835, 850-54 (1968); H. Drinker, Legal Ethics 118-20, 130-31 (1953); Illinois Code of Professional Responsibility, Disciplinary Rule 8 — 101(A)(5) (1970).) In In re Truder (1932), 37 N.M. 69, 17 P.2d 951, a district attorney accepted private employment from the administrator of the estate of a person who had died in an auto accident. At the same time, the attorney was prosecuting the criminal action for voluntary manslaughter which arose out of the same auto accident. Although the attorney was charged with professional misconduct only for offering to dismiss and for dismissing the criminal prosecution upon the settlement of the civil action, the court felt an “imperative duty to condemn” the mere practice of representing such conflicting interests. It stated:

“The incompatibility of public duty and private interest and employment is too plainly illustrated in this case to require discussion. It scarcely aggravates the case to show that one of the respondents actually uttered the suggestion which is implied in the situation itself, that a payment of damages would moderate the vigor or good faith, if not entirely end, the prosecution.” In re Truder (1932), 37 N.M. 69, 71, 17 P.2d 951,952.

Respondent offers in mitigation that, in spite of his misguided representation of conflicting interests, he acted openly and all the affected parties were aware of his dual representation. One inference from respondent’s position is that if a potential conflict is fully disclosed to all affected parties, the parties may consent to such representation. “But this escape hatch is not available to an attorney representing a municipality and a private client.” (In re A (1965), 44 N.J. 331, 335, 209 A.2d 101, 104, 17 A.L.R.3d 827, 832 (concurrence).) An attorney may not represent both a governmental body and a private client even if disclosure is made and the parties agree to such dual representation. “ ‘*** Where the public interest is involved, disclosure alone is not sufficient since the attorney may not represent conflicting interests even with the consent of all concerned.’ ” (In re A (1965), 44 N.J. 331, 334, 209 A.2d 101, 103, 17 A.L.R.3d 827, 831. Also, H. Drinker, Legal Ethics 120 (1953).) This court has noted that while disclosure would make representation no more ethical, failure to fully disclose would create temptation and foster public suspicion. See In re Becker (1959), 16 Ill. 2d 488, 498.

The record discloses that, contrary to respondent’s characterization, he did not act openly and did not fully disclose the extent of his dual representation. Under cross-examination by counsel for the Administrator, respondent admitted that, during the city council meeting at which the matter of prosecuting Robert Bird, Sr., for a continuing violation was discussed, he did not disclose his private employment by the Kutellas. Indeed, at no time during the negotiations between respondent and the Birds was the city council ever apprised of respondent’s representation of the Kutellas. Respondent testified that the mayor was aware of such representation, but there is no indication that the mayor knew that respondent hoped to dismiss the quasi-criminal charges in exchange for a settlement of the civil dispute or that respondent’s personal gain, by virtue of the contingent-fee agreement, depended not upon bringing the property into compliance with the ordinance but upon gaining a substantial monetary recovery for the Kutellas.

Respondent maintains that he did not become aware of the conflict of interest until late in the negotiations. Even if we disregard Bird’s testimony that he twice objected to respondent’s conflict of interests, it is obvious that respondent was aware of and concerned about the impropriety of his dual representation when he drafted the release which sought to absolve him of any misfeasance associated with such representation. At that point, however, he chose to insulate himself from culpability rather than to withdraw from the case. Respondent did not, in fact, withdraw until after Bird filed a motion in circuit court accusing him of governmental misconduct.

The evidence establishes quite clearly that respondent’s misconduct did not end with his misguided representation of conflicting interests. We find, as did the Review Board, that respondent intentionally used the leverage and power of his position as city attorney to secure personal gain and a favorable settlement in behalf of a private client. Respondent testified that he saw no conflict inasmuch as, in his official capacity, he could not prevent the issuance of complaints against Bird, Sr. Yet, when it served the interest of negotiations in the civil dispute, respondent’s position did allow him to suspend the charges for a two-week period. Respondent also took the opportunity, in his official capacity, to assure Bird that the city would entertain no complaints against Bird’s father “in the event of a settlement with Mr. Kutella.” Such overt representations, in addition to the very implications of respondent’s official position, could not help but convey to Bird that quasi-criminal charges would continue until settlement of the civil claim was reached.

In arriving at the appropriate discipline to be imposed in this case, we must appraise respondent’s conduct in reference to the underlying purposes of our disciplinary process, which purposes are to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public. (See, e.g., In re Sherre (1977), 68 Ill. 2d 56, 62; In re Smith (1976), 63 Ill. 2d 250, 256; In re Di Bella (1974), 58 Ill. 2d 5, 8; In re Gartland (1970), 47 Ill. 2d 177, 183.) As we have already stated, dual representation is particularly troublesome where one of the clients is a governmental body. In such circumstances, a conflict of interest not only generally undermines the public’s confidence in its officials, but directly and immediately prejudices the particular public interest at stake. We must further recognize that, in aggravation of this breach of public trust, respondent used his official position as leverage in an attempt to gain an advantage in the settlement of a civil dispute.

On the basis of these factors, it is our considered judgment that respondent should be suspended from the practice of law for a period of one year.

Respondent suspended.

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

MR. CHIEF JUSTICE WARD,

specially concurring:

I concur in the judgment of the majority that the respondent should be suspended, but I consider that the sanction imposed is not appropriate to serve the ends of the disciplinary process. This court has said that the first purpose of a disciplinary proceeding against a member of the bar is to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. Unwarranted lenity can be as injurious to the public interest and to the integrity of the profession as unwarranted severity. Considering the grave professional misconduct here I believe the suspension should have been for a period of not less than 3 years. Imposing sanctions is a melancholy business, but presiding over the professional disciplinary system is one of this court’s most important responsibilities.

MR. JUSTICE UNDERWOOD joins in this special concurrence.


author: MR. JUSTICE CLARK

text:
    (No. 49322.
    KEYSTONE STEEL & WIRE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Rufus Alexander, Appellee.)

      Opinion filed October 6, 1978.

      Robert E. Maciorowski, of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, for appellant.
    Timothy F. Sullivan, of Horwitz, Anesi, Osmon & Associates, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is a direct appeal from the circuit court of Cook County (58 Ill. 2d R. 302(a)), which confirmed an award by the Industrial Commission to the claimant, Rufus Alexander, who was injured in the course of his employment with Keystone Steel & Wire Co. (hereafter Keystone). The arbitrator, having found timely notice and sustention of accidental injuries, concluded the claimant was entitled to $78 per week for 323 weeks, $6 for one week, and thereafter an annual pension of $3,024 for the claimant’s “complete disability” making him “wholly and permanently incapable of work.” The arbitrator further concluded that the claimant should receive $5,488.81 as compensation, which had accrued since the date of the injury, and $40 “for necessary medical services.” The Commission affirmed.

Keystone raises three issues. It contends that the Commission’s finding of total and permanent disability and occupational hernia was against the manifest weight of the evidence; that the claimant failed to give Keystone notice within 15 days after the accident as is required in cases of hernia; and that Keystone was not liable for the $40 in medical services because the claimant elected to get those services at his own expense. Keystone also charges that the claimant is not entitled to permanent disability benefits because he refused to submit to a hernia operation.

The claimant, a utility man or janitor, was - carrying boxes weighing 30 to 40 pounds, up steps to Keystone’s main office on March 22, 1973, around 7 or 8 p.m., when, as he testified, he made “an awkward move or slip” and noticed “pain in my back and down my legs and in my groin.” He also testified that on the following day he reported the accident to the company nurse but failed to tell her about pain in his groin, because of embarrassment. She sent him to the company doctor, whom he saw two or three days later. Claimant said that he observed swelling in the area of the groin, and that he indicated to the company doctor he had “a funny feeling in my groin,” although the doctor did not examine the claimant’s groin. Thereafter, the claimant was examined by Dr. Churl Soo Suk, who confined him to the hospital for five days and ran a myelogram on him. The claimant’s back was operated on by Dr. Suk during a second hospitalization. In early 1974, the claimant visited Dr. D.G. Sereleas because of severe pain. Dr. Sereleas examined him and took X rays; he also suggested that the claimant go to the hospital. In addition, several other doctors had examined the claimant. In the fall of 1974, Keystone terminated the claimant’s employment for refusing to undergo corrective hernia surgery.

At the hearing before the arbitrator, Dr. Robert Busch, an orthopedist, testified that his diagnosis of the claimant’s condition was left inguinal hernia and “bilateral lumbosacral sprain with sciatic radiation of spasm to both hips and down the posterior aspect of both thighs.” His examination of the claimant, he said, also showed “operative scarring, laminectomy changes, fusion changes, myelography residue, intraspinal canal.” Dr. Busch concluded that the back and hernia conditions of the claimant were causally related to the accident of March 22, 1973, and that those conditions were permanent, preventing his return to work as a janitor; he could do no “lifting, bending, twisting, turning. ” Dr. Ben Lichtenstein, a psychiatrist and neurologist, also on behalf of the claimant, testified he believed the claimant was neither a psychotic, a neurotic, nor a malingerer, but was sincere in his fear of any more surgery including corrective surgery for the hernia and his back. Such fear, Dr. Lichtenstein intimated, is not unusual and is the prerogative of a patient. He admitted he was unable to diagnose the existence of a hernia, but he attested to limitations on the movement of the claimant’s back because of pain; hence, he concluded that claimant could not adequately perform janitorial chores because of the necessity of bending.

Dr. William Kane, an orthopedic surgeon testifying for Keystone, “took a history” and performed a physical examination of the claimant almost a year after the injuries were sustained. Two months later Dr. Kane again examined the claimant, who complained of a “knot” in the area of his groin (hernia) for which Dr. Kane suggested the claimant see a specialist. He also testified that, although he felt additional surgery would have helped alleviate pain in the claimant’s low-back area, given the claimant’s pessimism regarding the success of such an operation, he declined to persist in recommending it to the claimant. He also testified that the claimant could return to work but with restrictions, especially on lifting and bending.

Dr. Suk, who treated the claimant for almost a year beginning shortly after the injuries occurred, testified the claimant suffered from a ruptured disc “with a right sciatica.” During that period of treatment and examination, the claimant complained of no injury other than the low-back pain, Dr. Suk said. Dr. Suk concluded that the claimant could perform “light duty, less than fifty pound weight lifting” chores. Also for Keystone, Dr. George Cooper, who first examined the claimant well over a year and a half later, testified that the claimant could not squat without pain and had “a well healed lumbar surgical scar,” and that he tested for but found no hernia. His conclusion was that the claimant “had a postoperative back that was not associated with any neurological deficit” and could work so long as there was no heavy lifting or extensive bending.

This court has repeatedly held that “a court on review will not disturb a finding of the Industrial Commission unless its finding is contrary to the manifest weight of the evidence.” (E.g., Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535, 538.) Although there are conflicting opinions by medical experts in this case, it is for the Industrial Commission “to resolve disputed questions of fact, including those of causal connection, and to draw permissible inferences and decide which of conflicting medical views is to be accepted.” (Ford Motor Co. v. Industrial Com. (1972), 50 Ill. 2d 267, 271.) Moreover, the findings of the Commission will not be reversed merely because the court might draw different inferences. (Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312, 318; accord, C.R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273, 279.) We believe the record sufficiently supports the findings of the Commission that the claimant suffered total and permanent disability and sustention of an occupational hernia. Ill. Rev. Stat. 1973, ch. 48, par. 138.8(d).

Alternatively, Keystone argues that because the claimant refused to submit to additional surgery for his hernia conditions, he is not entitled to total permanent disability benefits. The claimant, the argument continues, was not reasonably exercising his freedom of choice. While one might agree with that assessment, we must point out three things. First, section 19(d) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(d)) gives to the Commission the discretion to reduce or suspend compensation where a claimant has refused “to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery.” Second, a claimant’s refusal should be in good faith. (Rockford Clutch Division v. Industrial Com. (1966), 34 Ill. 2d 240, 246-47.) Third, the Workmen’s Compensation Act is “designed for employees with divergent personalities, beliefs, and fears. If a claimant’s response to an offer of treatment is within the bounds of reason, his freedom of choice should be preserved even when an operation might mitigate the employer’s damages.” (34 Ill. 2d 240, 247-48.) Exercising its discretion, the Commission concluded the claimant was not acting in bad faith but sincerely feared the surgery; and the record supports the Commission’s award on this point. The arbitrator herself pointedly inquired into the motives and fears behind a patient’s psychological state apropos of injury and recovery. Dr. Lichtenstein testified that he concluded the claimant was not malingering and not neurotic but genuinely feared the risk in further surgery. Even Dr. Kane, for Keystone, did not believe surgery was desirable for the claimant because the claimant displayed such a pessimistic outlook on the success of such prospective surgery. Hence, the claimant’s refusal to undergo surgery in these circumstances should not deprive him of the benefits awarded by the Commission.

The second issue raised by Keystone is that the claimant failed to give “notice of the hernia *** to Keystone within the required time.” Both the claimant and Keystone stipulated that “notice of said accident was given said respondent [Keystone] within the time required under the provisions” of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.6(c)). They further stipulated that in “dispute is whether or not notice of a hernia arising out of said accident was given within the provisions of said Act.” The relevant provisions of section 6 are:

“(c) No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than 45 days after the accident. Provided:
(1) In cases of hernia, notice shall be given the employer within 15 days after the accident.”

(The special hernia notice requirement has since been deleted (Ill. Rev. Stat. 1975 & 1977, ch. 48, par. 138.6(c)).) Keystone’s contentions apparently are that section 6(c)(1) requires not merely notice of the accident but notice of the hernia condition within 15 days, and that the claimant’s notice was insufficient in that respect.

There are no cases which have considered the precise issue of whether section 6(c)(1) required notice of the accident or notice of the hernia condition. However, neither syntax nor logic supports Keystone’s construction of the statute, as a close reading shows. First, section 6(c) refers to “notice of the accident”; there is no reason to assume that the legislature intended, in the very next paragraph (par. 6(c)(1)), a requirement of notice of hernia condition by its use of the word notice. The reasonable view is that section 6(c)(1) simply required that notice of the accident be given within 15 days where hernias are (later) diagnosed. It seems the legislature, in explicitly setting out for cases of hernias a different time limit for notice, would have been similarly explicit in additionally burdening the claimant with a notice of hernia condition had it intended that. Second, we find it unlikely that the legislature intended that the claimant himself diagnose a hernia or rush out to have a diagnosis made in order to meet a 15-day requirement. A hernia may develop gradually, with symptoms not obvious within 15 days. (See Crow’s Hybrid Corn Co. v. Industrial Com. (1978), 72 Ill. 2d 168.) The 15-day limit in which to give notice of the accident simply enables the employer to investigate the accident (Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 143) and discourages frivolous or fraudulent claims. To hold any other way would, moreover, contravene the liberality which “should be allowed to the extent that it is consistent with the protection of the employer against unjust concealment of claims.” Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32,41.

Keystone apparently challenges the sufficiency of the notice of the accident because the claimant failed to fuHy describe his hernia symptoms. Again we disagree. It is true that the claimant’s testimony was contradictory as to what he told the nurse, company doctor and Dr. Suk about pain in his groin. However, the claimant, of limited education, maintained on both direct examination and cross-examination that he indicated to the company doctor, four days after the examination, he “had some kind of funny feeling up in there” and “hurted [sic] right in here,” referring to his groin. This court has held that the intention of the legislature, as far as notice is concerned, is “to require an employee *** to place the employer in possession of all known facts” within the time limit, (Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, 336-37.) This the claimant attempted to do. Although there were inconsistencies in the claimant’s testimony, such conflicts of testimony are for the trier of fact to resolve; the Commission is in a better position to judge credibility. (U.S. Steel Corp. v. Industrial Com. (1964), 32 Ill. 2d 68, 74.) Hence, we find the claimant’s notice to the employer met the requirements of the Act.

The last issue raised by Keystone is whether or not the claimant is entitled to reimbursement by Keystone of $40 for X rays and an examination of the claimant performed by Dr. D.G. Sereleas on February 7, 1974, because the claimant “elect[ed] to secure his own physician *** at his own expense.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a).) (Section 8(a) of the Act has since been amended to allow a claimant to elect such services at the employer’s expense (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)).) The claimant maintains that at the time he was receiving no treatment but was in much pain. If medical services are necessary and an employer is aware of the claimant’s desire or need for such medical services, “the employer’s liability for reimbursement would be clear.” (Barricks Corp. v. Industrial Com. (1969), 44 Ill. 2d 9, 14.) Those elements of necessity and awareness or notice of the desire for medical services are present here. Dr. Suk had released the patient from his “acute care”; yet the claimant continued to have pain, as he testified. A week before his visit to Dr. Sereleas, the claimant had informed Dr. Suk, who was no longer treating him, that he wished to see another doctor. (See Owens-Corning Fiberglas Corp. v. Industrial Com. (1977), 66 Ill. 2d 247, 256, where an employer was held liable for medical services sought by a claimant because a doctor in its employ was aware of the claimant’s condition.) Moreover, the claimant notified Keystone the following day of the visit to Dr. Sereleas. Having determined that Keystone would not pay for further consultation with or work by Dr. Sereleas, the claimant did not go to him again but apparently submitted to Keystone’s services, including another examination by Dr. Suk a week later. We simply are unable to determine, as Keystone wishes us to, that there was an “election” to receive medical services since he was no longer being treated and yet was apparently experiencing pain. (See Jewel Tea Co. v. Industrial Com. (1968), 39 Ill. 2d 180, 183.) Hence, we find Keystone is liable for the $40.

For the reasons stated, we affirm the judgment of the circuit court.

Judgment affirmed.


author: MR. JUSTICE RYAN MR. JUSTICE MORAN,

text:
    (No. 50390.
    WALTER F. SASS, Appellee, v. JOHN KRAMER, Secretary of Transportation, Appellant.

      Opinion filed October 6, 1978.

      MORAN, J., dissenting.
    William J. Scott, Attorney General, of Springfield (Frank S. Righeimer, Jr., William H. Wake, and Frank R. Martin, Special Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Cooper & Cooper, of Geneva (Richard L. Cooper, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, Walter F. Sass, filed an action in the circuit court of Kane County against the defendant, John Kramer, Secretary, Department of Transportation, State of Illinois (Department), to quiet title to and for a writ of possession of land over which the People of the State of Illinois had acquired an easement for a public highway by virtue of a dedication dated August 10, 1932, and executed by plaintiff’s predecessors in title. The State had paid the then owners of the fee title to the property the sum of $6,500 for the easement, and a highway bypass for U.S. Route 20 and Illinois Route 47 was constructed on part of the easement. Later, the Department determined to realign the intersection and the bypass was no longer used. In 1974, plaintiff indicated to the Department that he would like to acquire the State’s interest in the unused easement. When the terms of the transfer could not be agreed upon, plaintiff contacted his representative in the General Assembly. A bill was introduced and enacted by the General Assembly (Pub. Act 79 — 1020), providing for the release of the State’s easement upon payment of the fair appraised value of the State’s interest. The Department had the property appraised and notified plaintiff, who refused to pay the appraised price. In September 1976 plaintiff filed this action. The circuit court of Kane County held Public Act 79 — 1020 unconstitutional and entered an order quieting title in plaintiff, extinguished the rights of the People of the State of Illinois in the easement, and issued a writ of possession in favor of plaintiff. The appeal came directly to this court under our Rule 302(a) (58 Ill. 2d R. 302(a)), because of the trial court’s holding that the statute (Pub. Act 79 — 1020) was unconstitutional.

The defendant contends this action is in fact a suit against the State of Illinois and is barred by the statute which proscribes making the State of Illinois a party to an action in any court (Ill. Rev. Stat. 1973, ch. 127, par. 801). Because we agree with the defendant’s contention, it is not necessary for us to consider the other issues decided by the trial court.

Section 26 of article IV of the Constitution of 1870 provided:

“The State of Illinois shall never be made defendant in any court of law or equity.”

Although decisions of this court such as Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, eliminated or modified the concept of sovereign immunity as to various governmental entities, under the constitutional provision sovereign immunity of the State itself remained intact. In fact, it has been suggested that the doctrine of sovereign immunity was traditional and would have been applicable to the State, in Illinois, even in the absence of section 26. (G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 232 (1969).) In the constitutional convention of 1970, the General Government Committee, in explaining its proposal concerning sovereign immunity, pointed out that the removal of section 26 of article IV of the 1870 Constitution without more would create an ambiguity and posed the questions: Would removal of the constitutional limitation affirmatively create a right of action against the State in the courts of Illinois? Would such omission itself constitute a waiver of the State’s sovereign immunity? Or would such omission operate only to remove the constitutional limitation on the choices of the forum available to the legislature, leaving intact the State’s common law immunity? (6 Record of Proceedings, Sixth Illinois Constitutional Convention 676 (Proceedings)). Thus, the committee proposed that the new constitution specifically abolish sovereign immunity. (6 Proceedings 677.) The committee proposal as modified as to language became section 4 of article XIII of the Constitution of 1970, which provides:

“Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

The General Assembly thereafter enacted Public Act 77 — 1776, which became effective January 1, 1972, the same date as is provided in section 1(e) of the transition schedule of the 1970 Constitution as the effective date of section 4 of article XIII. Public Act 77 — 1776 provides:

“Except as provided in ‘An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal An Act herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.” (Ill. Rev. Stat. 1973, ch. 127, par., 801.)

Thus, the General Assembly, acting under the authority of the 1970 Constitution, specifically prohibited making the State of Illinois a defendant or party in any court.

We must now consider whether in the present suit the State of Illinois is a defendant or a party in this case within the statutory proscription. Under the previous decisions of this court we conclude that it is.

Although the State is not named a party to this action, this court has held this was not necessary to constitute a violation of section 26 of article IV of the 1870 Constitution. The law applicable to this question as it relates to this case has on numerous occasions been stated and can be found in the following cases: E.H. Swenson & Son v. Lorenz (1967), 36 Ill. 2d 382; Georgeoff v. State (1965), 32 Ill. 2d 534; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35; Monroe v. Collins (1946), 393 Ill. 553; Posinski v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1941), 376 Ill. 346; Schwing v. Miles (1937), 367 Ill. 436; Noorman v. Department of Public Works & Buildings (1937), 366 Ill. 216; See Comment, 15 De Paul L. Rev. 340, 342-44 (1966). See also G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 233 (1969).

In summary, these cases hold that the determination of whether or not the State is a party to a suit is not one of formal identification of the parties as they appear in the record, but instead depends upon the issues involved and the relief sought. The constitutional inhibition against making the State of Illinois a party to a suit cannot be evaded by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested. As noted below, the easement had been dedicated to the People of the State of Illinois. “Since the property of the State is involved, the State is directly and adversely affected by the suit” and the action must be held to be one against the State. Posinski v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1941), 376 Ill. 346, 351-52.

The dedication of' the easement in 1932 by the then owners of the fee title recited that the owners “hereby grant, convey and dedicate to the People of the State of Illinois, for the purpose of a public highway,” a tract of land including that in dispute in this case. It is the contention of the plaintiff that the State has abandoned the easement; that title to the property of the plaintiff is no longer subject to the burden of the easement; and that the plaintiff is now entitled to possession of the property. The plaintiff contends that Public Act 79 — 1020, which was recorded in the office of the Recorder of Deeds, and which requires payment of the appraised value of the easement as a condition of vacating the same, constitutes a cloud on his title. The complaint is in two counts: count I, asking that the cloud on plaintiff’s title be removed and that title be quieted in him; and count II, asking that he be put in possession of the property.

In this case it was necessary for the trial court to determine whether, under the facts, there had in fact been an abandonment of the easement by the State. Such an abandonment necessarily involved and affected an interest in property which had been conveyed to and vested in the People of the State of Illinois. Although the suit is nominally against an officer of the State, John Kramer, Secretary of Transportation, it clearly affects property of the State. The real party in interest in the case is not the individual defendant named but the People of the State of Illinois, title to whose property is at stake in this litigation. Under the authority set out above, such an action cannot be maintained in a court, and the same proscription prevails under the 1970 Constitution and under Public Act 77-1776 (Ill. Rev. Stat. 1973, ch. 127, par. 801).

While legal official acts of State officers are in effect acts of the State itself, illegal acts performed by the officers are not, and when a State officer performs illegally or purports to act under an unconstitutional act or under authority which he does not have, a suit may be maintained against the officer and is not an action against the State of Illinois. (E.H. Swenson & Son v. Lorenz; Moline Tool Co. v. Department of Revenue; G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 233 (1969).) Plaintiff contends that Public Act 79 — 1020 is unconstitutional and that defendant’s refusal to convey title because the plaintiff would not make the payment required by the Act authorizes the maintenance of this action. The gravamen of plaintiff’s complaint is his contention that title to this property is in him by virtue of the fact that the State had abandoned the easement. It was necessary for him to prove, and for the court to find, that the easement had been abandoned or vacated by the State, before the alleged unconstitutional provision of Public Act 79 — 1020 could constitute a cloud on his title, which he seeks to remove by count I of the complaint, or before he would be entitled to possession, which he seeks under count II. The nature of the relief sought in this complaint does not permit the action to be maintained against an officer of the State under the cases relied_upon.

We conclude that the action is, in fact, an action against the State of Illinois and under the provisions of Public Act 77-1776 (Ill. Rev. Stat. 1973, ch. 127, par. 801), quoted above, the action cannot be maintained in any court except as provided in the Court of Claims Act. We find no provision in that act authorizing the defendant to maintain this action against the State of Illinois in any of the courts provided for under article VI of the Constitution of 1970.

For these reasons the judgment of the circuit court of Kane County is reversed.

Judgment reversed.

MR. JUSTICE MORAN,

dissenting:

The majority holds that whenever the State of Illinois abandons an easement which has been used for highway purposes, the underlying fee simple titl eh older is without a remedy to quiet title. It is no answer to argue that such person has an adequate remedy in the Illinois Court of Claims, for that entity does not have equitable jurisdiction.

Nonuse, by itself, does not constitute abandonment of an easement by grant. (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 390.) There must be a relinquishment of the property accompanied by an intent to abandon — the intent being the important factor in determining abandonment. Whether these two elements have been proved are questions to be resolved by the trier of fact. Once an abandonment has occurred, by operation of law, the fee simple titleholder is automatically reinvested with complete ownership of the property, which is then unencumbered by the easement. Chicago & Eastern Illinois R.R. Co. v. Clapp (1903), 201 Ill. 418, 424-26.

The opinion views plaintiff’s claim as one in which the State of Illinois is “vitally interested,” one which “clearly affects property of the State” and one in which the State is, therefore, the real party in interest. (72 Ill. 2d at 491-92.) I cannot accept this premise in light of the evidence that established the State’s abandonment of the easement before plaintiff instituted the instant suit.

One of defendant’s exhibits, introduced by agreement, specifically stated, “Dedicated Right of Way *** No longer needed for highway purposes *** 1.307 acres.” The evidence further revealed that the State removed the pavement from both ends of the bypass, thereby preventing any vehicular use of the easement. Also before the trial court was Public Act 79 — 1020, section 1 of which declared, “the right of way easement for highway purposes *** is vacated, extinguished, abandoned and released ***.” Included in the Act was the requirement that plaintiff pay a certain sum of money for release of any State interest.

Defendant’s right-of-way engineer related the Department’s attitude. He testified that, although the State’s easement was not in use, it continued in effect, for it was possible that the easement could be used at some future date. He was asked if it was the Department’s position that, until the appraised value was paid, the easement would remain the State’s highway, and he responded, “That is correct.”

The Department’s positions are thus inconsistent. It admits nonuse of the easement, but speculates on a possible future need, then states that that possible need can be eliminated upon plaintiff’s payment of a certain sum of money. The Department cannot have it both ways.

In my opinion, the trial court correctly found that the State did abandon the easement, that any interest the State had in the easement ceased upon abandonment, and that, by operation of law, the plaintiff then became fully seized of the fee simple title, unencumbered by the easement.

“ ‘Whether or not a particular action falls within the prohibition of the constitution has not been determined solely by an identification of the formal parties to the record. The determination has rather depended upon the particular issues involved and the relief sought. [Citations.] ’ ” E.H. Swenson & Son, Inc. v. Lorenz (1967), 36 Ill. 2d 382, 385.

Inasmuch as the State divested itself of any right or interest in and to the easement at the time of abandonment, and since plaintiff’s right, by operation of law, at that time accrued, it cannot be said that plaintiff now seeks to assert any right against the State. The relief plaintiff seeks is to have the court recognize that such right did in fact exist at the time he filed his suit to quiet title. Therefore, under this view, suit against John Kramer, Secretary, Department of Transportation, should not be considered an action against the State of Illinois. See Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37.


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 50071.
    VIRGINIA WALKER, Appellee, v. DONALD RUMER, Appellant.

      Opinion filed October 6, 1978.

      Donald M. Tennant, of Dobbins, Fraker & Tennant, of Champaign, for appellant.
    Gilbert H. Saikley and Albert Saikley, of Saikley, Garrison & Associates, of Danville, for appellee.
    Jerome Mirza & Associates, of Bloomington (John J. Lowrey and William J. Harte, of counsel), for amicus curiae the Illinois Lawyers Association.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Upon allowance of defendant’s, Donald Rumer’s, motion to dismiss, the circuit court of Champaign County dismissed count II of plaintiff’s, Virginia Walker’s, two-count complaint. The circuit court made the required findings and pursuant to Supreme Court Rule 308(a) (58 Ill. 2d R. 308(a)) plaintiff sought, and the appellate court allowed, an appeal from the order. The appellate court reversed and remanded (51 Ill. App. 3d 1005), and we allowed defendant’s petition for leave to appeal.

In count II plaintiff alleged that while she was under his professional care and in the exercise of due care for her own safety, defendant performed a surgical procedure known as a bilateral palmar fasciectomy and

“(5) That from July 18, 1974 and thereafter, the plaintiff and all instrumentalities were under the exclusive control, care, custody and supervision of the defendant;
(6) That while the plaintiff was under the exclusive control, care custody and supervision of the defendant, the plaintiff in some manner unknown to her sustained severe and permanent injuries to both of her hands;
(7) That said injuries were the result of carelessness and negligence of the defendant; ***.”

The appellate court held that count II contained allegations sufficient to state a cause of action under the doctrine of res ipsa loquitur and that the circuit court erred in dismissing it.

The appellate court reasoned that because in most circumstances the evidence of the cause of a patient’s injury was “inaccessible to the patient” and “accessible to the defendant,” the application of the doctrine of res ipsa loquitur would do “no more than place the doctor, the hospital or their staff in the same status as any other defendant in any other negligence action.” The court stated, too, that with the burden of going forward with the evidence shifted to the defendant, evidence that the condition complained of resulted from a cause other than defendant’s negligence would render the doctrine of res ipsa loquitur inapplicable; and if there were no evidence of negligence the case could be concluded either by summary judgment before trial or by directed verdict at the close of the plaintiff’s case. (51 Ill. App. 3d 1005, 1008-09.) We do not agree that the doctrine of res ipsa loquitur is to be applied in the manner suggested by the appellate court.

Defendant contends that heretofore the doctrine has been limited in its application to those cases in which the “act of malpratice is understandable by the average person without the need of medical testimony.” He argues that the rationale of Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, was that intramuscular injections are so commonplace that the doctrine was there applicable. He argues further that a bilateral palmar fasciectomy is not a commonplace surgical procedure and that the average person is not sufficiently familiar with and so able to understand what is involved as to permit an inference of negligence by application of res ipsa loquitur.

In Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 448-50, the court said:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. (Feldman v. Chicago Railways Co. 289 Ill. 25; Bollenbach v. Bloomenthal, 341 Ill. 539.) This in essence is the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant. ***
Whether the doctrine applies in a given case is a question of law which must be decided by the court, but once this has been answered in the affirmative, it is for the trier of fact to weigh the evidence and determine whether the circumstantial evidence of negligence has been overcome by defendant’s proof.”

In Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 305, the court held that “given the appropriate state of facts” the doctrine of res ipsa loquitur is applicable to an action involving medical malpractice.

Defendant’s argument that the doctrine of res ipsa loquitur cannot be applied because the bilateral palmar fasciectomy performed in this case was not a “commonplace surgical procedure” with which the average person is familiar and able to understand indicates a misapprehension of the relationship between the “common knowledge” exceptions to the requirement of proof by expert testimony in medical malpractice cases and the doctrine of res ipsa loquitur. The requirement for the application of the doctrine of res ipsa loquitur is not that the surgical procedure be “commonplace” or that the “average person” be able to understand what is involved; the determination which must be made as a matter of law is whether “the occurrence is such as in the ordinary course of things would not have happened” if the party exercising control or management had exercised proper care. That determination may rest either upon the common knowledge of laymen or expert testimony. The statement in Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, that the administration of intramuscular injections is a commonplace procedure was not intended to limit the application of the doctrine of res ipsa loquitur to commonplace situations but to demonstrate that the complaint in that case alleged “the appropriate state of facts” to which the doctrine would apply.

Concerning the applicability of res ipsa loquitur to medical malpractice actions, the Restatement (Second) of Torts, section 328D, comment d (1965), states:

“In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff’s case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion. On the other hand there are other kinds of medical malpractice, as where a sponge is left in the plaintiff’s abdomen after an operation, where no expert is needed to tell the jury that such events do not usually occur in the absence of negligence.”

Other courts which have considered the question have held that the foundation for the application of the doctrine of res ipsa loquitur may rest either on the common knowledge of laymen or on medical testimony. See Perin v. Hayne (Iowa 1973), 210 N.W.2d 609; Fehrman v. Smirl (1963), 20 Wis. 2d 1, 121 N.W.2d 255; Horner v. Northern Pacific Beneficial Association Hospitals, Inc. (1963), 62 Wash. 2d 351, 382 P.2d 518; Mayor v. Dowsett (Ore. 1965), 400 P.2d 234.

We are of the opinion that the method proposed by the appellate court for the procedure to be followed in medical malpractice cases pleaded on a theory of res ipsa loquitur is unsatisfactory. (51 Ill. App. 3d 1005, 1009.) In these cases, as in others, the circuit court should be able to determine on a motion to dismiss whether a cause of action has been stated. In determining whether the doctrine is applicable the circuit court is required to decide as a matter of law whether “the occurrence is such as in the ordinary course of things would not have happened” if the party exercising control or management had exercised proper care. Although ordinarily only ultimate facts, and not conclusions or inferences, are to be pleaded, we are of the opinion that in the pleading of a cause of action in medical malpractice cases under the doctrine of res ipsa loquitur, reliance on the doctrine should be alleged. (See Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 303.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Winnett v. Winnett (1974), 57 Ill. 2d 7; Miller v. DeWitt (1967), 37 Ill. 2d 273, 287.) Except for this allegation count II contains the allegations of fact essential to a complaint based on res ipsa loquitur. Whether, on these facts, the doctrine applies must be determined as a matter of law, and at this stage of the proceedings we are unable to say that plaintiff will be unable to show that res ipsa loquitur is applicable.

For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 50086.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GUY STRAIT, Appellee.

      Opinion filed October 6, 1978.

      William J. Scott, Attorney General, of Springfield, and Daniel D. Doyle, State’s Attorney, of Rockford (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Phyllis J. Perko and Martin P. Moltz, of the Illinois State’s Attorneys Association Statewide Appellate Assistance Service, of Elgin, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and Daniel Cummings, Assistant Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a bench trial in the circuit court of Winnebago County defendant, Guy Strait, was convicted of indecent liberties with a child and sentenced to the penitentiary for a term of not less than 10 nor more than 20 years. The appellate court reversed (52 Ill. App. 3d 599), and we allowed the People’s petition for leave to appeal.

The facts are adequately stated in the appellate court opinion and will be repeated here only to the extent necessary to discuss the issues. In an information filed on May 13, 1976, it was charged that on March 3, 1972, defendant committed the offense of taking indecent liberties with a child under the age of 16. Defendant moved to dismiss the information on the ground “that the offense is well past the three year statute of limitations allowed by chapter 38, section. 3 — 5(b), Illinois Revised Statutes.” Defendant’s post-trial motion asserts “that the court erred in denying the motion to dismiss the indictment.”

In reversing the judgment the appellate court followed the long-established rule that if the indictment or information shows on its face that the offense was not committed within the period of limitation facts must be averred which invoke one of the exceptions contained in the statute. People v. Carman (1943), 385 Ill. 23; People v. Ross (1927), 325 Ill. 417; Garrison v. People (1877), 87 Ill. 96.

The People urge that “Illinois should adopt the rule that limitation-tolling facts need not be alleged in a charging document” and alternatively that “the standard enunciated by this court in People v. Pujoue and People v. Gilmore for testing the sufficiency of charging instruments should apply to informations challenged in the trial court.”

Section 111 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111 — 3) in pertinent part provides:

“(a) A charge shall be in writing and allege the commission of an offense by:
* * *
(4) Stating the date and county of the offense as definitely as can be done; ***.”

Section 114 — 1(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 1(a)) provides that the circuit court may dismiss the indictment, information or complaint upon the written motion of the defendant made prior to trial for the reason that “(2) The prosecution of the offense is barred by Sections 3 — 3 through 3 — 8 of the ‘Criminal Code of 1961’, approved July 28, 1961, as heretofore and hereafter amended; ***.” Section 3 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 3 — 5) provides for the periods of limitations applicable to enumerated offenses and classes of offenses, and sections 3 — 6, 3 — 7 and 3 — 8 (Ill. Rev. Stat. 1975, ch. 38, pars. 3 — 6, 3 — 7, 3 — 8) provide for extended limitations, periods excluded from limitations, and limitations applicable to an offense based upon a series of acts. This court has consistently held that although the precise allegation and proof of time or date are not necessary, the charging document must allege that the crime was committed at some time prior to the return of the indictment or the filing of the information and within the period fixed by the statute of limitations. (People v. Day (1949), 404 Ill. 268; People v. Taylor (1945), 391 Ill. 11; People v. Angelica (1934), 358 Ill. 621.) Alternatively, facts maybe alleged and proved which by reason of the provisions of sections 3 — 6, 3 — 7 and 3 — 8 would toll the running of the statute.

In Toussie v. United States (1970), 397 U.S. 112, 114-15, 25 L. Ed. 2d 156, 161, 90 S. Ct. 858, 860, the Supreme Court observed: “The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.” The grounds upon which the People seek to wrest from a defendant the protection afforded by section 3 — 5 of the Criminal Code should be stated in the information with sufficient specificity to enable him to defend against them.

We have examined the authorities cited by the People and those collected in the annotation at 52 A.L.R.3d 922 (1973). We are not persuaded that the minority view which the People urge us to adopt is desirable, and upon application of the long-established rule we hold that the information, which shows on its face that the alleged offense was committed beyond the limitations period, is defective in failing to allege facts which would invoke the exclusions provided in sections 3 — 7 and 3 — 8.

We consider next the People’s contention that because the information apprised defendant of the offense charged with sufficient particularity to enable him to prepare his defense and to plead the resulting conviction as a bar to future prosecution, we should, in testing its sufficiency, apply the rule enunciated in People v. Pujoue (1975), 61 Ill. 2d 335, and followed in People v. Gilmore (1976), 63 Ill. 2d 23. Unlike Pujoue and Gilmore, where the charging instruments were challenged for the first time on appeal, defendant, pursuant to the provisions of section 114 — 1 of the Code of Criminal Procedure, filed a pretrial motion attacking the sufficiency of the information and raised the question again in his post-trial motion. Under these circumstances Pujoue and Gilmore are inapposite, and we find no basis for their application here.

For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50239.
    ANTON KERNER, Appellant, v. STATE EMPLOYEES’ RETIREMENT SYSTEM OF ILLINOIS et al.-Appellees.

      Opinion filed Sept. 19, 1978.

    — Rehearing denied Dec. 1, 1978.

      WARD, C.J., and CLARK and MORAN, JJ., took no part.

      Robert Weiner, of Springfield (Terry Lee Fields, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The question on this appeal concerns the effect of a felony conviction upon the pension rights of the late Otto Kemer, Jr., former Governor of Illinois. The facts, which are undisputed, are included in the opinion of the appellate court (53 Ill. App. 3d 747) and will be restated here only so far as necessary for an understanding of our opinion.

In 1965, during his service as Governor, Otto Kemer applied for and was accepted into membership in the State Employees’ Retirement System (hereinafter System) and by paying some $11,000 secured credit for his prior gubernatorial service. Following his 1968 resignation as Governor to accept appointment as a Federal judge, he applied for and was granted retirement benefits and subsequently received monthly pension checks. He was thereafter convicted of several felonies under the United States Code (see United States v. Isaacs (7th Cir. 1974), 493 F.2d 1124, cert. denied (1974), 417 U.S. 976, 41 L. Ed. 2d 1146, 94 S. Ct. 3183), which were related to his service as Governor. His monthly pension allowances were terminated by the System because of those convictions, resulting in a demand by him for resumption of pension payments and for all arrearages and benefits. The System, claiming that the convictions caused a loss of all rights in the pension plan except the right to a refund of the lump-sum payment and monthly contributions, filed a counterclaim seeking repayment of the difference between the total benefits paid and the amounts contributed by him.

A hearing officer appointed by the secretary of the System recommended resumption of the pension payments and payment of all arrearages and benefits. The board of trustees of the System, however, rejected the hearing officer’s recommendation and voted to refuse any further payments. Further, the board remanded the cause to the hearing officer for a determination concerning the System’s counterclaim. Following Otto Kemer’s death, his representative filed an administrative review proceeding in the circuit court of Sangamon County (Ill. Rev. Stat. 1975, ch. IO8V2, par. 14 — 200; ch. 110, par. 264 et seq.) attacking the board’s termination of the monthly pension payments. The circuit court reversed the board and ordered payment of all arrearages and benefits accruing prior to Otto Kemer’s death. The Appellate Court for the Fourth District, however, reversed the circuit court (53 Ill. App. 3d 747), effectively affirming the decision of the board of trustees. We granted leave to appeal. We note that the System’s counterclaim for repayment of the amount paid to Otto Kemer in excess of his contributions is not included in this appeal.

The primary question presented is the construction of section 14 — 199 of the Hlinois Pension Code:

“None of the benefits herein provided for shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as an employee.
This section shall not operate to impair any contract or vested right heretofore acquired under any law or laws continued in this Article nor to preclude the right to a refund.
All future entrants entering service subsequent to July 9, 1955 shall be deemed to have consented to the provisions of this section as a condition of coverage.” (Ill. Rev. Stat. 1975, ch. 108½,par. 14-199.)

In construing this statute, as with any statute, our objective is to ascertain and give effect to the legislative intent as determined from the necessity or reason for the enactment and the meaning of the words employed. In re Roberts Park Fire Protection District (1975), 61 Ill. 2d 429,437-38.

Plaintiff first contends that the phrase “convicted of any felony” refers only to convictions of crimes which are felonies under Illinois law, and that since the convictions were actually violations of Federal law, not Illinois law, they are not within the statutory description of “any felony.” We disagree. When faced with an analogous question in the context of a Federal statute, the United States Supreme Court chose a broad interpretation of the word “any”:

“Nor can we hold that the Act bars use of committee testimony in United States courts but not in state courts. The Act forbids use of such evidence ‘in any criminal proceeding *** in any court’. Language could be no plainer. Even if there could be legislative history sufficiently strong to make ‘any court’ mean United States courts only, there is no such history. The few scraps of legislative history pointed out tend to indicate that Congress was well aware that an ordinary person would read the phrase ‘in any court’ to include state courts. To construe this phrase as having any other meaning would make the Act a trap for the unwary.” (Adams v. Maryland (1954), 347 U.S. 179, 181-82, 98 L. Ed. 608, 612, 74 S. Ct. 442,445.)

There is similar authority from this court that, absent contextual implications to the contrary, a broad interpretation of the word “any” is to be favored. E.g., Patteson v. City of Peoria (1944), 386 Ill. 460, 464-65; People ex rel. Ocean Accident & Guarantee Corp. v. VanCleave (1900), 187 Ill. 125, 134-35.

In our judgment the legislature’s choice of the word “any” evinces an intent to include all felonies, State or Federal, so long as the offense was a “felony relating to or arising out of or in connection with” service as a State employee. “The language of the [Illinois Pension] Code is clear and there is no need for this court to construe it so as to give it any meaning other than the one which is clearly stated. It is the duty of the court to enforce the law as enacted according to its plain and unmistakable provisions.” (Peterson v. Board of Trustees (1973), 54 Ill. 2d 260, 264.) This literal interpretation accords with the obvious purpose of the statute, to discourage official malfeasance by denying the public servant convicted of unfaithfulness to his trust the retirement benefits to which he otherwise would have been entitled. This construction accords, too, with the related purpose of implementing the public’s right to conscientious service from those in governmental positions. In view of this legislative goal it seems to us plainly immaterial whether the felony involved is defined by the laws of this State, a sister State, or the Federal government as long as it arose from, was connected with, or related to the State service; that it was so related here is undisputed. We believe the offenses of which Otto Kemer was convicted are clearly felonies within the ambit of section 14 — 199.

Plaintiff also contends that because Otto Kemer’s rights were vested, at least by the time preceding his convictions when he began receiving monthly payments, they were “heretofore acquired” within the meaning of the second paragraph of section 14 — 199 and thus could not be impaired by this statute. Our reading of the statute, however, indicates the phrase “heretofore acquired” means acquired prior to the enactment of the felony provision and does not refer to the date of vesting or contracting in the case of each individual member. This second paragraph protects the right of employees whose pension rights had vested before the 1955 enactment of this provision. It is not applicable to Otto Kerner, whose pension rights vested long after the section’s effective date. The flaw in plaintiff’s reading of the statute was emphasized by the appellate court when it noted that under plaintiff’s theory, an employee need only retire prior to his conviction of a felony in order to render the entire statute meaningless. (53 Ill. App. 3d 747, 751.) Certainly such easy circumvention of the law’s purpose cannot have been intended.

We believe section 14 — 199 is clearly applicable here and by its terms operated to deny Otto Kerner the retirement benefits to which he would have been entitled, absent the convictions, under the Illinois Pension Code. Plaintiff urges, however, that this conclusion renders the statute unconstitutional under article XIII, section 5, of the Illinois Constitution of 1970, which provides:

“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

The difficulty with plaintiff’s position is that the very section of the Constitution upon which he relies provides that membership in the retirement system is “an enforceable contractual relationship.” Section 14 — 199 was, of course, in effect years before Otto Kerner became a member of the retirement system, and it became, by its terms, a condition of the contractual relationship to which he consented by applying for membership. As the commentary accompanying the Constitution states: “Of course, the ‘contractual relationship’ is governed by the actual terms of the contract or pension.” (Ill. Ann. Stat., 1970 Const., art. XHI, sec. 5, Constitutional Commentary, at 302 (Smith-Hurd 1971).) Plaintiff does not explain how enforcement of this condition, to which the parties agreed and which has existed throughout the duration of the contract, can become an unconstitutional impairment of the benefits of that contract. (See In re Roberts Park Fire Protection District (1975), 61 Ill. 2d 429, 441.) Membership in the System was sought with knowledge of this condition, and it clearly cannot be said to impair or diminish the benefits within the meaning of the constitutional provision.

We have also reviewed plaintiff’s claims relating to corruption of blood and forfeiture of estate (Ill. Const. 1970, art. I, sec. 11), cruel and unusual punishment (U.S. Const., amend. VIH), and due process (Ill. Const. 1970, art. I, sec. 2; U.S. Const., amends. V, XIV). We hold that the termination of payments here violates none of these provisions.

Accordingly, the judgment of the appellate court sustaining the Board’s denial of pension benefits is affirmed.

Judgment affirmed.

WARD, C.J., and CLARK and MORAN, JJ., took no part in the consideration or decision of this case.