author: MR. JUSTICE UNDERWOOD

text:
    (No. 53079.
    WALTER PECKAT CO., Appellant, v. THE REGIONAL TRANSPORTATION AUTHORITY et al., Appellees.

      Opinion filed May 30, 1980.

    Rehearing denied July 14, 1980.

      Thomas G. Lyons, Daniel W. Coyne, and Patrick L. Moore of O’Keefe, Ashenden & Lyons, of Chicago, for appellant.
    James C. Munson, Howard J. Swibel, G. Christian Kronberg, and Michael D. McDonough, of Kirkland & Ellis, of Chicago (Hopkins, Sutter, Mulroy, Davis & Cromartie, of counsel), for appellee Regional Transportation Authority.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel, Assistant Attorney General, of Chicago, of counsel), for appellees James B. Zagel et al.

   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Walter Peckat Co., plaintiff, filed a class action suit in the circuit court of Cook County against the Regional Transportation Authority (RTA), James B. Zagel, Director of Revenue of the State of Illinois, Jerome Consen tino, Treasurer of the State of Illinois, and William J. Scott, Attorney General of the State of Illinois. The suit requested that the circuit court declare a tax imposed by the RTA unconstitutional and also requested further equitable relief. The circuit court dismissed both the original complaint and an amended complaint. We allowed direct appeal to this court pursuant to our Rule 302(b) (73 Ill. 2d R. 302(b)). We affirm.

This litigation questions the constitutionality of differential tax rates imposed on retailers by the RTA pursuant to section 4.03 of the Regional Transportation Authority Act (Public Act 81 — 2d S.S. 3) (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 704.03(e)), which provides in part:

“(e) The Board may impose a Regional Transportation Authority Retailers’ Occupation Tax upon all persons engaged in the business of selling tangible personal property at retail in the metropolitan region at a rate not to exceed 1 %of the gross receipts from such sales made in the course of such business within the County of Cook and /4% of the gross receipts from such sales made in the course of such business within the Counties of DuPage, Kane, Lake, McHenry and Will.”

The RTA subsequently passed Regional Transportation Authority Ordinance No. 79 — 201, September 24, 1979 (effective Nov. 1, 1979), which imposed the tax at the maximum rates allowed.

Plaintiff contends that the difference between the rate of tax imposed within Cook County and the rate imposed within the other five counties under the RTA’s jurisdiction violates section 2 of article IX of the Illinois Constitution of 1970. That section provides:

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

Plaintiff does not argue that the classification involved in this case is unreasonable or that the rates imposed are not uniform within the classes. Rather, it contends that the section implicitly requires that the tax rates within the area under the jurisdiction of a taxing authority be uniform. It contends that, absent express constitutional authorization like that in sections 6(l)(2) and 7(6) of article VII of the Illinois Constitution of 1970 for units of local government, the imposition of differential tax rates based on different classes within the jurisdiction of a local taxing authority is unconstitutional without regard to the reasonableness of the classification.

Initially we note the apprehensions of the drafters of the 1970 Constitution that courts might find unintended limitations upon the taxing powers, and their declaration that any restrictions were expressly stated. (Polich v. Chicago School Finance Authority (1980), 79 Ill. 2d 188, 196-98; Hoffman v. Clark (1977), 69 Ill. 2d 402, 422-23.) The plaintiff’s burden in establishing such a restriction therefore is particularly heavy in the absence of express language so providing. It attempts to meet that burden in this instance by arguing that under the Illinois Constitution of 1870 no taxing authority could impose a tax that was not uniform within the area of its authority. It furthermore argues the drafters of the 1970 Constitution carried this restriction forward with only an exception for units of local government. (See Ill. Const. 1970, art. VII, secs. 6(l)(2), 7(6).) Since the RTA is a special rather than general unit of local government, plaintiff concludes that the instant tax is unconstitutional.

Plaintiff presents a complex argument to support its conclusion, but we need not be concerned with all the facets of its analysis. Regardless of whether its proposed restriction applied to property taxes, we are not convinced that it applied to nonproperty taxes. Although the 1870 Constitution required municipalities to tax property uniformly within their jurisdictions (see Ill. Const. 1870, art. IX, secs. 9, 10), no such limitation was applied to non-property taxes. (See G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 416, 420-32 (1969).) The only limitation on occupation, privilege and franchise taxes found in the 1870 Constitution is that they be “uniform as to the class” upon which they operate. Ill. Const. 1870, art. IX, sec. 1.

Plaintiff nevertheless argues that two decisions of this court, Banta v. City of Chicago (1898), 172 Ill. 204, and Van Driel Drug Store, Inc. v. Mahin (1970), 47 Ill. 2d 378, indicate that a taxing authority must impose a non-property tax uniformly throughout the area of its jurisdiction. At issue in Banta was the validity of a tax on brokers imposed by the city of Chicago. The tax involved imposed a flat licensing fee on all brokers doing business in the city without regard to the volume of business conducted by the broker. The tax did not classify brokers into different groups, and no issue concerning the validity of such a classification was considered by the court. The issues raised by the appellant relevant to our analysis here are, first, whether the legislature could authorize the city to impose a license fee, and, second, whether such a fee must vary according to the volume of the broker’s business. In answering the first of these questions the court stated:

“Section 1 of article 9 of the constitution of 1870 expressly authorizes the General Assembly to tax various occupations, including brokers, the only restriction being the requirement that such tax should be uniform as to the class upon which it operates. The General Assembly delegated to the cities in the State the power to impose such taxation within their respective jurisdictions. Rev.
St. c. 24, par. 62, cl. 91. It was competent for the General Assembly to delegate the exercise of such power within the limits of cities and villages to such municipalities. City of East St. Louis v. Wehrung, 46 Ill. 392; Howland, v. City of Chicago, 108 Ill. 496.” {Banta v. City of Chicago (1898), 172 Ill. 204, 219.)

Plaintiff would interpret this language to mean that a non-property tax must be uniform throughout the area of jurisdiction of the taxing authority. We believe, however, that in the context of that case the language merely means that the General Assembly could delegate to a city the authority to impose a license fee within that city, not outside it. Any such fee, of course, had to be uniform as to the class on which it operated as required by section 1 of article IX of the Constitution of 1870, but there is no indication in the opinion that the tax must be uniform throughout the jurisdiction if there were different classes therein. The question of multiple classes was not raised and was not considered.

The appellants in Banta also argued that the restrictions of section 9 of article IX of the 1870 Constitution applied and required the tax to vary according to the volume of the broker’s business. The court rejected that argument, however, and held that the only restriction was that the tax had to be uniform as to the class upon which it operated. (Banta v. City of Chicago (1898), 172 Ill. 204, 221.) Section 9 of article IX of the 1870 Constitution also contained the distinctive language requiring property taxes imposed by municipalities to be “uniform in respect to persons and property, within the jurisdiction of the body imposing the same.” By refusing to apply section 9 to non-property taxes the court implicitly rejected the contention that a local taxing authority could not create classes within its jurisdiction for taxing purposes. Such classifications were only subject to the stricture of section 1 of article IX and that the tax be uniform as to the class subjected to it.

Nor does Van Driel Drug Store, Inc. v. Mahin (1970), 47 Ill. 2d 378, support the plaintiff’s position. At issue in Van Driel was the validity of a statute which authorized counties to impose a service tax at one rate and municipalities to impose it at a different rate. The appellant contended that classifying municipalities and counties as different types of tax entities was unreasonable. The court held, however, that differences between municipalities and counties justify classifying them differently for tax purposes. (47 Ill. 2d 378, 382-83.) In support of its holding the court pointed out that the legislature may classify cities and counties according to population so long as the provisions are uniform within each class and also quoted a passage from People ex rel. O’Connell v. Chicago & Western Indiana R.R. Co. (1912), 256 Ill. 388:

“ ‘The constitution requires uniformity of taxation in taxing districts, and that is secured by regarding every taxing district as a separate unit, — the county for county taxes, the town for town taxes, the city or village for municipal taxes, the school district for school taxes, and any other district as a like unit.’ (256 Ill. at 392.)” (47 Ill. 2d 378, 382.)

Since Van Driel involved a nonproperty tax, plaintiff argues that the use of this quotation by the court indicates that a taxing authority may not impose different tax rates for a nonproperty tax on different classes within its jurisdiction. O’Connell involved a property tax and the limitations of section 9 of article IX of the Constitution of 1870 applied to the issues in that case. In Van Driel, however, the court used the quotation from O’Connell only to support the proposition that classifying counties and municipalities differently is reasonable. Whether a taxing authority may make classifications within its jurisdiction for the purpose of imposing a nonproperty tax was not at issue and was not considered.

Thus, we do not find any limitation in the 1870 Constitution upon the ability of taxing authorities to create different classes within their jurisdiction for the purpose of imposing a nonproperty tax. Moreover, the opinion of this court in Gilligan v. Korzen (1974), 56 Ill. 2d 387, clearly indicates that no such restriction applies under the present constitution, even had one existed under the former constitution. At issue in Gilligan was the validity of a privilege tax imposed by Cook County solely on the unincorporated areas of the county. The plaintiffs argued that this tax violated section 2 of article IX of the Constitution of 1970. The county contended that the tax was a special service tax authorized by section 6(7) of article VII of the 1970 Constitution, but the court rejected that argument because the ordinance which imposed the tax did not mention providing any special services to the area taxed. The court nevertheless upheld the ordinance because the county had the power to impose taxes and the classification based on residence within or outside of a municipality was a reasonable one. The court found the distinction reasonable because a county provides many services to unincorporated areas that municipalities provide within their municipal boundaries.

Although the plaintiff in Gilligan apparently did not expressly argue that a local taxing authority does not have the authority to create different classes within its jurisdiction for the purpose of imposing a nonproperty tax, we believe that the reasoning of the court implicitly rejects such a contention. Plaintiff in this case argues units of local government have the power to impose taxes on specific subdivisions of their area of jurisdiction only because section 6(l)(2) of article VII of the 1970 Constitution authorizes them to impose special service taxes. In Gilligan, however, the court found that the tax involved was not a special service tax and nevertheless upheld it, even though it created different classes within the jurisdiction of the authority imposing the tax. The only restriction imposed by the court was that the classification must be reasonable as required by section 2 of article IX of the 1970 Constitution. Gilligan, therefore, is completely inconsistent with plaintiffs contention that section 2 of article IX prohibits a local taxing authority from creating classes within its jurisdiction for the purpose of imposing a nonproperty tax. Plaintiff seeks to avoid the effect of Gilligan by arguing that the case was actually based on certain property tax cases under the 1870 Constitution which addressed the problems of local taxing authorities with overlapping jurisdictions. The court did not refer to any of those cases, however, and we find no reason to believe that the court’s decision was influenced by them.

Pursuant to section 8 of article VII of the 1970 Constitution, the legislature authorized the RTA to use the classification and to impose the tax involved in this case. Plaintiff does not contend that the classification is unreasonable or that the tax imposed within each class is not uniform, and we find no reason to conclude that it is.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 52085.
    VERN COLLIER et al., Appellants, v. WAGNER CASTINGS COMPANY et al., Appellees.

      Opinion filed June 20, 1980.

      William J. Harte, Ltd., and Scheele, Serkland, & Boyle, Ltd., of Chicago (James C. Serkland and William J. Harte, of counsel), for appellants.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Jerald E. Jackson and Keith W. Casteel, of counsel), for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

At issue in this appeal is whether, assuming the plaintiff’s allegations are sufficient to constitute a cause of action for the intentional infliction of emotional distress, such a cause of action will lie against the employer and coemployee defendants in view of sections 5(a) and 11 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, pars. 138.5(a), 138.11).

The circuit court of Macon County struck plaintiff’s complaint for failure to state a cause of action and entered judgment in favor of defendants. The appellate court affirmed, one judge dissenting. (70 Ill. App. 3d 233.) We granted leave to appeal. We affirm.

In considering a motion to dismiss for failure to state a cause of action, plaintiffs’ pleaded facts are assumed to be true. According to the complaint, the following are the relevant facts.

Vem Collier (hereinafter referred to as plaintiff) was employed by defendant Wagner Castings Company (hereafter Wagner Co.) on March 17, 1975, when he was stricken with an illness at approximately 4:30 p.m. A coworker of plaintiff telephoned defendant William A. Stogner, a licensed nurse or medical attendant employed by Wagner Co., and said that plaintiff was lying sick on the floor complaining of chest pain. Stogner then undertook a course of action with respect to the plaintiff. He instmcted the caller to tell plaintiff to walk under his own power to the first-aid station. This station was known to be located over 100 feet away and to require the negotiation of 13 descending and four ascending stairs. The caller told Stogner that the plaintiff appeared too sick to exert the effort necessary to reach the first-aid station. Stogner then instructed the caller to ask the plaintiff whether he could walk to the first-aid station, but Stogner had hung up the phone when the caller returned to it after talking with plaintiff. When finally informed that plaintiff could not reach the station under his own power, Stogner asked the caller to help plaintiff. Unable to help plaintiff by himself, the caller instead requested immediate medical aid for the plaintiff. Stogner apparently agreed to render that aid. A substantial period of time elapsed before Stogner arrived, however.

When he did arrive, Stogner advised plaintiff over a period of 15 minutes that he was suffering from indigestion despite the classic signs and symptoms of impending cardiac arrest: plaintiff was lying on the floor, pale and sweating and complaining of chest pains. Ultimately, after coworkers suggested the possibility of a heart attack, plaintiff was placed on a stretcher and carried to the first-aid station, where he was isolated from family, friends and coworkers for at least three hours, despite his requests for doctor or hospital care.

Stogner then either improperly administered or misinterpreted the results of a blood pressure test, observed plaintiff crawl to a sink and vomit, and proceeded to instruct plaintiff to return to his work area and seek his own relief. After descending four stairs, walking over 100 feet, and ascending 13 more stairs, the plaintiff collapsed and was carried back to the first-aid station. Requests for doctors were denied. A coworker subsequently called plaintiffs wife and informed her of the situation. With her son, she drove 40 miles to remove plaintiff. During this time, Stogner slouched in his chair or leaned against his desk, smoking and reading a book. He did not attempt to render assistance. He did not help plaintiff’s wife or son remove plaintiff from the premises. Plaintiff was taken to a hospital, where he suffered three episodes of cardiac arrest that evening. He has not returned to work. It was alleged that either defendants knew or, in the exercise of ordinary care, should have known that their actions would, “with a high degree of probability, cause severe emotional distress,” and that “such distress was certain or substantially certain to result therefrom.”

According to the pleadings, defendants Wagner Co., John A. Wagner and John A. Wagner, Jr., promulgated rules and regulations and posted notices which announced a company policy to refuse to pay medical expenses for care obtained without the approval of the company medical attendant. These notices and regulations allegedly intimidated plaintiff from seeking medical care before he did.

In addition to these facts in issue, a prior settlement agreement between some of the parties was submitted for the record. It released Wagner Co. from all liabilities under the terms of the Workmen’s Compensation Act in consideration for a lump-sum payment of $14,181.57. This settlement was approved by the Industrial Commission.

In count I, plaintiff alleged that the foregoing conduct was extreme and outrageous and beyond all possible bounds of decency. All of the defendants were alleged to have known, or to have failed to exercise ordinary care in finding out, that their conduct would cause severe emotional distress. Damages in excess of $15,000 were claimed.

Count II of the complaint alleged that defendants, “with utter disregard and indifference” to the safety of plaintiff, breached the statutory duty set forth in section 8(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a)), requiring employers to provide first aid and medical and surgical services reasonably required to relieve the effects of accidental injuries. Basically the same facts were used to support this count, and a $15,000 minimum judgment was claimed for physical and mental injuries proximately caused.

Count III realleged the same facts and asked for punitive damages. Count IV, brought on behalf of plaintiffs wife and son, realleged the same facts and asked for damages related to their emotional distress in witnessing defendants’ conduct for the period of time during which they came and picked up the plaintiff. They also asked damages for loss of society and companionship, a request which was not renewed in this appeal. Defendants challenge the sufficiency of the pleadings alleging the tort of intentional infliction of emotional distress and the propriety of permitting such a cause of action to go to trial in view of the exclusivity provisions of the Workmen’s Compensation Act and in view of a prior settlement agreement entered into by the parties.

We consider first count II of the complaint and those portions of count III which are grounded on count II.

Count II of the complaint was grounded upon the breach of section 8(a) of the Workmen’s Compensation Act, which requires employers to provide reasonable medical care to injured employees. (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a).) This count cannot state a cause of action against defendants Wagner Co., John A. Wagner and John A. Wagner, Jr., because under the pleaded facts they have breached no statutory duty. As far as the pleaded facts are concerned, these defendants made a reasonable effort to supply medical care: an employee was hired for this purpose. Since there are no reasonable allegations that these defendants directed or encouraged Stogner’s conduct or had knowledge of his propensity to act as he did, they had a right to expect that injuries resulting from Stogner’s care or lack of it would be compensable under the Act (Lincoln Park Coal & Brick Co. v. Industrial Com. (1925), 317 Ill. 302) or that they would be liable under the Act for medical care obtained by employees in substitution for care which was supposed to be obtained under the Act. (Lawrence v. Industrial Com. (1945), 391 Ill. 80, 90.) (This principle was made part of the statute by Public Act 79 — 79, approved June 30, 1975, amending, inter alia, section 8(a).) As to defendant Stogner, plaintiffs have cited no authority under which section 8(a) created a statutory duty of care, the breach of which, with utter disregard and indifference, would remain uncompensated under the Act.

Plaintiffs do not argue the applicability of section 19(m) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(m)) or of the Health and Safety Act (Ill. Rev. Stat. 1975, ch. 48, pars. 137.1 et seq., 137.5 — 1), but instead rely solely on Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172. In that case an employee sought benefits under the Act and her employer retaliated by firing her. This court held that a cause of action was stated. The action was necessary to prevent employer abuse of power and to implement and protect the policies of the Act. Kelsay cannot be extended, however, as plaintiffs have requested, to permit common law actions for situations covered by the Act or to allow suit against the innocent employer in this case. Insofar as the receipt of compensation under the Act is an inadequate substitute for prompt medical care, that inadequacy also exists in considering subsequent tort suits.

We turn to consider whether, assuming counts I and IV and those portions of count III based on count I state a cause of action for the intentional infliction of emotional distress, such counts are nevertheless barred in the instant case. Section 5(a) of the Workmen’s Compensation Act states in pertinent part:

“(a) No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a).)

Section 11 of the Act similarly states:

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act.” Ill. Rev. Stat. 1973, ch. 48, par. 138.11.

To escape the bar of these sections, plaintiff would have to prove either that the injury (1) was not accidental (2) did not arise from his or her employment, (3) was not received during the course of employment or (4) was noncomp ensable under the Act. Taking these situations in reverse order, we conclude first that, in light of this court’s decision in Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556, emotional distress is compensable under the Act and, therefore, plaintiff cannot escape the exclusivity provisions on this basis.

The pleaded facts also establish that plaintiff was in the course of his employment when the distress was allegedly inflicted. He was at his place of employment performing his duties when he was stricken with an illness prompting immediately the injuries of which he complains. Because the injuries were sustained during an undertaking related to employment under the pleaded facts, they were sustained during the course of employment. (See Chicago Transit Authority v. Industrial Com. (1975), 61 Ill. 2d 78, 83.) Likewise his injuries arose out of his employment. The qualitative increase in the risk of the infliction of emotional distress in the situation here was inextricably connected to his employment. (See Pazara v. Industrial Com. (1980), 81 Ill. 2d 76, 83.) In a normal situation plaintiff’s choice of doctor and the consequent likelihood that the doctor chosen would inflict emotional distress is a risk personal to him. Here, however, a qualitative increase in the risk of harm results from the company’s employment of a medical attendant who is clothed with the apparent power to prevent, in certain circumstances, an employee’s receipt of medical care at company expense. Therefore, the injury arose out of plaintiffs employment.

The resolution of this case, therefore, depends upon whether the plaintiffs injuries were accidental within the meaning of the Act. An ambiguity in the law arises from cases in which the term “accidental” has been defined. (See 2A A. Larson, Workmen’s Compensation sec. 68.12 (1976).) An injury must be traceable to a definite time, place and cause to be considered accidental within the meaning of the Act. (Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244, 249; Johns-Manville Corp. v. Industrial Com. (1975), 60 Ill. 2d 221, 225.) Injuries inflicted intentionally by a coemployee are compensable under the Act as long as those injuries arose out of and in the course of employment [Associated Vendors, Inc. v. Industrial Com. (1970), 45 Ill. 2d 203), because the injury is accidental from the employee’s point of view. The ambiguity arises from the obvious fact that the injury was intentionally, not accidentally, inflicted.

Taking this analysis one step further, Professor Larson suggests, and one of our appellate courts has agreed with him, that unless an employer has committed, “commanded or expressly authorized” an assault like that alleged here, “it to him is just one more industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system” (2A A. Larson, Workmen’s Compensation sec. 68.21 (1976); accord, Jablonski v. Multack (1978), 63 Ill. App. 3d 908.) Plaintiff alleges, however, that the company and its officers in this case intimidated him from receiving medical care by the posting of notices and the promulgation of rules and regulations requiring an injured employee to obtain permission from the company or its agents before they would pay for medical benefits provided by noncompany medical facilities. This type of notice appears to be a reasonable policy implementing section 8(a) of the Act as it was in force at the time of this incident:

“(a) The employer shall provide the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.
The employee may elect to secure his own physician, surgeon and hospital services at his own expense.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a).)

In the absence of a demonstration of employer impropriety on this score, these notices cannot be a basis for imposing liability on an employer otherwise innocent. Therefore, whether or not the Act bars this action, the reasoning of Professor Larson and the Jablonski decision would persuade us that since the employer did not direct, encourage or commit an intentional tort, neither the employer nor its officers should be forced to defend this suit.

The ambiguity caused by the term “accidental,” however, remains in considering defendant Stogner. Larson suggests that an intentional tortfeasor should not be able to shield his liability with the exclusivity provisions of a compensation statute premised on insuring accidental injuries (accord, Griffin v. George’s, Inc. (1979), 267 Ark. 91, 96-97, 589 S.W.2d 24, 27; Finch v. Swingly (1973), 42 App. Div. 2d 1035, 348 N.Y.S.2d 266; Readinger v. Gottschall (1963), 201 Pa. Super 134, 191 A.2d 694; Stewart v. McLellan’s Stores Co. (1940), 194 S.C. 50, 9 S.E.2d 35), but that if the injured party receives compensation pursuant to the act, he or she should not be heard to subsequently allege their intentional nature. (2A A. Larson, Workmen’s Compensation secs. 68.12 n.9; 67.22 (1976). Accord, Porter v. Downing (Tex. Civ. App. 1979), 578 S.W.2d 460; Legault v. Brown (1954), 283 App. Div. 303, 127 N.Y.S.2d 601; Burgess v. Tryde Manufacturing Co. (1960), 20 Misc. 2d 875, 195 N.Y.S.2d 519; Jones v. Jeffreys (Tex. Civ. App. 1952), 244 S.W.2d 924.) Our appellate court, in Jablonski v. Multack (1978), 63 Ill. App. 3d 908, has concluded that the law’s paramount interest is to avoid shielding from liability one who intends to do harm and, further, that the legislature could not be presumed to have intended to permit an intentional tortfeasor to shift his liability to a fund paid for with premiums collected from innocent employers. The court, consequently, held that neither section 5(a) nor section 11 should bar a common law suit against an intentional tortfeasor. Moreover, the court suggested that such action could be brought after compensation under the Act was awarded. Recognizing that such a result could lead to a double recovery for the injured plaintiff, the court held that any common law recovery be subject to the crediting procedures set forth in section 5(b) (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(b)). Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 913 n.l.

This court has considered the exclusivity provisions of the Act three times. In Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618, 628, this court held that “the Workmen’s Compensation Act precludes a common-law action for damages by an employee under the act against a co-employee based on the latter’s negligence during the course of their employment. That result follows from the basic purpose of workmen’s compensation to place the cost of industrial accidents upon the industry. That purpose would be blunted if the cost of those accidents was shifted from one employee to another within the industry. So far as persons within the industry are concerned, the Workmen’s Compensation Act eliminated fault as a basis of liability.” (Accord, Chmelik v. Vana (1964) , 31 Ill. 2d 272.) Similarly, in Sjostrom v. Sproule (1965) , 33 Ill. 2d 40, 43, this court held that since a car accident injuring an employee passenger in a vehicle driven by a fellow employee while in the line of duty was compensable under the Act, no common law action could be brought. This resulted regardless of proof of wilful or wanton negligence, a necessary predicate for an automobile guest to impose liability upon a host driver.

Thus we have never considered whether a suit could be brought against a coemployee for civil damages for an intentional tort arising out of and in the course of employment. It is not necessary that we address that question here, for we deem that where an employee injured by a coemployee has collected compensation on the basis that his injuries were compensable under the Act, the injured employee cannot then allege that those injuries fall outside the Act’s provisions. We base this conclusion not only upon a fear of double recovery (Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 94), but also upon our desire to prevent the proliferation of litigation. (See Adams v. Pearson (1952), 411 Ill. 431, 436-37.) Since this plaintiff has collected compensation pursuant to an agreement executed in lieu of a claim and approved by the Industrial Commission, giving that settlement the status of an award (Dyer v. Industrial Com. (1936), 364 Ill. 161, 163, Ahlers v. Sears Roebuck Co. (1978), 73 Ill. 2d 259, 265), he is now precluded from suing for civil damages.

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

Judgment affirmed.


author: PER CURIAM: MR. JUSTICE WARD,

text:
    (No. 52213.
    JANICE J. BOND et al., Appellees, v. THE BOARD OF EDUCATION OF MASCOUTAH COMMUNITY UNIT SCHOOL DISTRICT NO. 19, Appellant.

      Opinion filed June 20, 1980.

      WARD, J., dissenting.
    Baker & Scrivner, of Belleville (Harold G. Baker, Jr., of counsel), for appellant.
    Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellees.
    Lambert M. Ochsenschlager, Richard L. Horwitz Sc Wayne F. Weiler, of Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for amicus curiae Aurora East Public School District 131.
   PER CURIAM:

Plaintiffs, 23 contractual continued service (tenured) teachers, were employees of the defendant board of education. They brought this declaratory judgment action in the circuit court of St. Clair County, seeking to be paid according to the salary schedule in effect for teachers who had signed contracts for the 1977-78 school year. Plaintiffs had declined to sign contracts tendered to them for that time period. The circuit court held in favor of plaintiffs, and the appellate court, by summary order, affirmed. (71 Ill. App. 3d 1115.) We granted the defendant’s petition for leave to appeal.

On May 27, 1977, 90 days before the commencement of the school year, defendant tendered individual contracts to its tenured teachers. Under the contract, the teacher was given 10 days in which to sign, but was assured that both signers and nonsigners would retain tenure rights; that no teacher was required to sign, and nonsigners could continue employment under the provisions of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 1 — 1 etseq.). The contract contained a clause establishing that a signing teacher would refrain from participation in any work stoppage, sit-in or strike. It offered tenured teachers a salary increase as set forth on an attached schedule, and stated that, although that amount might be increased, it would, under no circumstances, be reduced. An accompanying letter advised that nonsigning teachers would receive the same salary as had been paid during the 1976-77 school year.

Approximately 175 teachers signed and returned the contracts. In a letter dated July 25, 1977, defendant reminded those who had not signed that their salaries for the ensuing school year would be exactly the same as for 1976-77, without any longevity or educational increments. On August 15, 1977, defendant granted, to teachers who had not yet signed, nine additional days in which to do so. Plaintiffs did not sign contracts. They did, however, teach for the 1977-78 school year, which began on August 25, 1977, and performed duties the same as teachers who had signed contracts. Plaintiffs were paid the same salaries as they had been paid the previous school year.

The defendant here contends that, because the no-strike clause was a valuable consideration, the paying of a salary increase to only those teachers who signed 1977-78 contracts was not arbitrary, capricious or unreasonable. Plaintiffs counter that the contracts gave defendant nothing it could not already expect, in that teachers, as public employees, are prohibited from striking; that the contract, therefore, contained no valid consideration on the part of signing teachers, making the defendant’s refusal to pay plaintiffs the increased salary arbitrary, unreasonable and discriminatory and based upon an improper classification. Plaintiffs also contend that, because they were not paid the increase, they were subjected to a reduction in pay.

In determining the statutory authority of school boards over teachers’ salaries, this court stated, in Richards v. Board of Education (1960), 21 Ill. 2d 104, 109, that a school board’s discretionary control in that regard is subject only to limits expressly fixed by the School Code and “to constitutional prohibitions against actions that are arbitrary, discriminatory and unreasonable, or based upon an improper classification.” In Richards, the board adopted a salary schedule based upon professional growth. Because professional growth increases the ability of teachers and their value to the school system, it was held proper to compensate teachers on this basis, such classification being “reasonable, natural and based on substantial differences germane to the subject.” 21 Ill. 2d 104, 110.

Both parties assert a conflict between the appellate court cases of Davis v. Board of Education (1974), 19 Ill. App. 3d 644, and Littrell v. Board of Education (1977), 45 Ill. App. 3d 690. Plaintiffs urge that the present case should be controlled by Littrell. Defendant argues that this court should favor Davis. We find that the instant case neither parallels nor is in conflict with Littrell or Davis.

In Littrell, on the first day of school, the board tendered a “contract” that did not contain a no-strike clause. In fact, the Littrell “contract” was apparently devoid of consideration and imposed no duties or obligations on signing teachers, yet a salary increase was offered only to those who signed. Under the circumstances, the action of the board in increasing the salaries of only the teachers who signed was arbitrary and unreasonable, and not based upon any difference germane to the subject.

In Davis v. Board of Education (1974), 19 Ill. App. 3d 644, the board responded to a statement of the representative educational association, which statement indicated the possibility of a strike, by tendering, more than 60 days before the commencement of the school year, a new contract with salary increases and other benefits. The tendered contract included a no-strike provision. On review, however, consideration for the contract was not at issue. The question was merely whether the board acted unreasonably or arbitrarily in making a salary distinction between teachers who signed or declined to sign a timely tendered contract. We agree with the conclusion reached in Davis and find that, under the proper conditions, a salary distinction between signing and nonsigning teachers is not arbitrary or unreasonable. (Contrary to plaintiffs’ argument, sub judice, the Davis court did not “base its decision on” there having been a reduction in salaries, nor did it “accept the proposition thát” there had been a reduction in salaries. The question of a reduction was, in fact, never broached.) The Davis court held that nonsigning teachers who returned for the new school year were to be paid under the continuing terms of the prior year’s contract and were entitled to increments due thereunder.

Neither Littrell nor Davis presented the exact facts and issues presently before us. Vital to our considerations here is the mandate of article X, section 1, of the Illinois Constitution (Ill. Const. 1970, art. X, sec. 1), which declares that a fundamental goal of this State is to provide for the free, quality education of all people (to the best of their ability), and directs that the State shall provide for an efficient system of educational institutions and services to implement said goal. (See Board of Education v. Redding (1965), 32 Ill. 2d 567, 572; Allen v. Maurer (1972), 6 Ill. App. 3d 633, 639-40.) The responsibüity for effectuating this constitutional mandate is delegated to the school boards.

Complementary to the constitutional mandate is the public policy against strikes by public employees, first established by this court in Board of Education v. Redding (1965), 32 Ill. 2d 567, 571-72, and subsequently reiterated in Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, 441, City of Pana v. Crowe (1974), 57 Ill. 2d 547, 550-51, and Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412. As such policy relates to teachers, it was intended to avoid disruptions of the educational process and to provide an element of stability, not only in the students’ educational progress but also in the planning and budgetary considerations of the boards in the performance of their mandated duties. Plaintiffs argue that, because the prohibition against strikes exists as a public policy, those teachers signing a contract agreeing not to participate in a strike offer nothing more to the defendant by way of consideration than is already imposed upon them and others by existing public policy.

In response we must first point out the obvious: the public policy against strikes by public employees has been frequently and blatantly ignored. Defendant posits, however, and it is not disputed by plaintiffs, that where this policy has been included within a contract, imposing a personal and individual responsibility on a teacher to avoid such conduct, participation of signing teachers in strikes has been conspicuously absent.

A school board is charged not only with providing for the continuum of educational services, but with the fiscal management incidental thereto. Frequently, compelled to offer deserved salary increases to their teachers, boards may be forced by that increase to commit the totality of their budgets, eliminating or minimizing any budgetary reserve. Boards must, as much as possible, contain educational expenses for taxpayers and avoid deficit spending. To this end, they must utilize every legitimate means to reduce the risk of subsequent, untoward expenses such as those that might accrue as the result of a strike. This court recognizes a contractual no-strike clause — the embodiment of public policy — as a reasonable and practical consideration extracted by a board to better enable it to perform its constitutionally mandated duties.

Plaintiffs concede, by their brief, that the classification is reasonable if defendant can point to some provision in the contract which gave it additional consideration to justify paying signing teachers a salary higher than that of nonsigners. In that we have found a no-strike provision to be consideration, it follows that the classification between signers and nonsigners is reasonable and justifies the salary differential.

By this recognition, we negate the plaintiffs’ and appellate court’s statement that “paying [plaintiffs] less than other tenured teachers of like experience and education for performing like duties simply because they did not execute the written contracts presented to them was arbitrary and unreasonable.” The salary differential applied not “simply because” plaintiffs did not sign a contract, but because, by refusing to sign, they avoided a personal commitment to a consideration which was of practical benefit to the defendant.

The law does not require tenured teachers to sign a new contract, and those who decline the option of signing cannot be removed for their failure to do so. (Donahoo v. Board of Education (1952), 413 Ill. 422, 427; Davis v. Board of Education (1974), 19 Ill. App. 3d 644, 646.) “Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period” or continue at a salary not reduced from that of the previous year, except under specified conditions. (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11.) For this reason, among others, the terms of continued employment for a tenured teacher differ from those of the average employment contract. Under the latter, the employer offers a salary, the amount being totally discretionary, in exchange for a particular job performance, and if the employee is unwilling to accept the terms, employment may be terminated. A tenured teacher, however, has the option of declining the new contract and continuing employment, under the provisions of the School Code, at a salary and according to the terms of the prior year’s contract. “[I] f an offer was properly made and unconditionally accepted, it would be in force according to its terms, but if not accepted or conditionally accepted, then the provisions of the Teacher Tenure Law apply.” (Donahoo v. Board of Education (1952), 413 Ill. 422, 427.) Having neither signed a new contract nor tendered a resignation prior to the 60 days before the beginning of the school year, plaintiffs’ employment continued under the terms of the Code.

Plaintiffs assert that because they were paid a salary below that of contractually obligated teachers, yet performed the same work, their salaries were reduced in contravention of the provisions of the statute. (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11.) We disagree. Plaintiffs were informed that, if they did not sign the contract, they would have the right to be paid a salary determined under the School Code. Thereunder, they were entitled to continue employment at a salary and under the terms of the prior year’s contract. They did, in fact, continue at that salary.

The terms of the prior year’s contract, however, included a schedule of longevity and educational salary increments, and defendant was in error in withholding these increments from plaintiffs, and plaintiffs should be paid any salary increments due under the 1976-77 contract terms.

For the foregoing reasons, the judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

MR. JUSTICE WARD,

dissenting:

Mr. Justice Holmes’ dissent in Northern Securities Co. v. United States (1904), 193 U.S. 197, 48 L. Ed. 679, 24 S. Ct. 436, may be remembered mainly for President Theodore Roosevelt’s reaction to it, but some of the dissenting language should be recalled for cases such as this one. Holmes wrote:

“Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” 193 U.S. 197, 400-01, 48 L. Ed. 679, 726, 24 S. Ct. 436, 468.

True, this is not a great case but it is in a sense a hard case and is one that I feel has caused the majority to bend and breach principles that should govern here.

Strikes by public employees violate the expressed public policy of this State and are unlawful. The promise here was simply to forbear from acting illegally. The promise of a forbearance already imposed by law cannot be a sufficient consideration, and an agreement founded upon it is contrary to public policy. 1 S. Williston, Contracts sec. 132 (3d ed. 1957).


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE WARD,

text:
    (No. 52435.

      In re W. S., Jr., a Minor, Appellee (The People of the State of Illinois, Appellant).

      Opinion filed June 20, 1980.

      WARD, J., concurring.
    William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., and Curtis L. Blood, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, and Charles M. Schiedel, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

On January 27, 1977, pursuant to a petition for adjudication of delinquency, the circuit court of St. Clair County found respondent, W. S., Jr., guilty of the offense of burglary. On March 3, 1977, the court placed respondent on probation for a period of two years. A petition to revoke probation was subsequently filed, alleging that, on or about November 3, 1977, respondent “did knowingly exert and obtain unauthorized control over the property of Jean Nicole, a corporation doing business in St. Clair County,” in violation of the theft provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)(1)). On December 21, 1977, following the presentation of evidence, the petition to revoke probation was granted. On January 19, 1978, the circuit court ordered respondent, then 16 years old, committed to the Department of Corrections until he reached the age of 21 or until he became fit to return to society. In ordering respondent committed, the court cited a history of offenses of increasing severity, the inability of his parents to control him, and the exhaustion of rehabilitative measures. On appeal by respondent, the appellate court reversed the judgment of the circuit court, holding that the State had failed to prove the corporate existence of the alleged victim, Jean Nicole. 75 Ill. App. 3d 1048.

As appears from the evidence introduced by the State, respondent and another boy shoplifted five leather coats from the alleged corporate victim, J ean Nicole, a clothing store in the St. Clair Square shopping center in Fairview Heights. Detective Dean Floyd, a juvenile officer with the Fairview Heights Police Department, read a statement that he had taken from respondent in which respondent admitted stealing coats from a store in St. Clair Square on the day in question. Jack Keith, an employee of a shopping center construction company, testified that he saw two young males, one of them the respondent, carry coats from the shopping center in which Jean Nicole was located, and he watched as they threw the coats in a garbage can behind a restaurant. He then retrieved the coats and brought them to the shopping center office. The coats were later introduced into evidence by the State. Sandra Sutter and Kathleen Olivia Eckert, employees of Jean Nicole who testified at respondent’s probation revocation hearing, both identified the coats as belonging to Jean Nicole, and both identified respondent as being in the store on the day of the theft.

In identifying the coats, Ms. Sutter, a sales clerk, indicated that the inscription “M. W.”, found on at least one of the coats, referred to Miller-Wohl, the company under which Jean Nicole operated. The following exchange then ensued:

“Q. Is that the corporate owner?
A. Yes.
Q. How do you know that?
A. Well, my employer told me that.
MR. RADGLIFFE [respondent’s attorney] : I would object to what her employer told her regarding the corporate existence.
THE COURT: It will be accepted for what it’s worth. Objection overruled.”

It clearly appears from the quoted matter that Ms. Sutter’s testimony concerning corporate existence was hearsay and therefore inadmissible. While corporate existence may be shown by oral testimony, the person so testifying must have personal knowledge of that fact. (People v. McGuire (1966), 35 Ill. 2d 219, 232.) That requirement is not met here, and the circuit court erred in refusing to strike Ms. Sutter’s testimony on this point.

In any event, the failure of the State to prove corporate existence is not fatal to its case. As the court held in McGuire, a burglary prosecution, antiquated standards of proof of corporate existence are inconsistent with the idea that the significant rights of the accused are of greater concern than compliance with ritualistic formalities. (35 Ill. 2d 219, 232.) Prior to the decision in McGuire, proof of corporate existence required introduction of the corporate charter, evidence of the exercise of corporate powers, or, in the absence of objection, oral testimony. (See People v. Gordon (1955), 5 Ill. 2d 91, 95.) In McGuire, the court removed the restriction placed on the last-mentioned type of proof, holding that oral testimony is sufficient, without regard to whether an objection is made, if the testimony is given by one with knowledge of the fact of corporate existence. (People v. McGuire (1966), 35 Ill. 2d 219, 231-32.) The court’s decision was based in part on its perception of the so-called “user statute,” which authorizes proof of corporate existence by evidence of the exercise of corporate powers (Ill. Rev. Stat. 1977, ch. 38, par. 160 — 1). The court stated: “The statute apparently liberalized the law of evidence at the time of its passage, and it should not, in our opinion, preclude proof of the existence of a corporation by means other than those it specifies.” People v. McGuire (1966), 35 Ill. 2d 219, 231.

Following the McGuire decision, the opinions of the appellate court have likewise evidenced a concern for the observance of the significant rights of the accused rather than compliance with rigid formalities for proof of corporate existence. (People v. Watts (1979), 76 Ill. App. 3d 791; People v. Sims (1975), 29 Ill. App. 3d 815, 817-18; People v. Nelson (1970), 124 Ill. App. 2d 280, 285-87; cf. People v. Whittaker (1970), 45 Ill. 2d 491, 495 (designation of a burglary victim as a “company” in an indictment is sufficient to apprise the accused of the fact that the victim is a corporation).) Consistent with this liberalization of the standards of proof of corporate existence, we held in People v. Berland (1978), 74 Ill. 2d 286, 312, a prosecution for arson with intent to defraud an insurance company, that the State’s failure to produce evidence on the question of corporate existence is not fatal to its case and that corporate existence, a matter of public record, is a fact which is properly before a court by way of judicial notice. (See, e.g., People v. Whittaker (1970), 45 Ill. 2d 491, 495 (judicial notice taken of the certified list of domestic and foreign corporations to determine that the entities specified in a burglary indictment are, in fact, corporations); People v. Sims (1975), 29 Ill. App. 3d 815, 818 (courts may take judicial notice of corporate existence of a theft victim)). This practice of taking judicial notice of public records is one which has long been recognized in both civil and criminal cases (see, e.g., People v. Garrett (1975), 62 Ill. 2d 151, 163 (judicial notice of coroner’s report); Gooding v. Morgan (1873), 70 Ill. 275, 276 (judicial notice of government land surveys)) and in courts of original and appellate jurisdiction (Ill. Rev. Stat. 1977, ch. 51, pars. 48a, 48b). Professor Wigmore specifically approved of the practice when questions of corporate existence arise, labeling the courts early rulings “a bundle of barnacles clinging to the solid bottom of the Ship of Justice, retarding its speed and usefulness and making it unseaworthy.” Comment, 10 Ill. L. Rev. 436 (1916).

Our analysis does not end, however, as it did in Berland, with the observation that judicial notice can remedy gaps in the State’s evidence on the question of corporate existence. We are dealing here with a probation revocation proceeding in which respondent is charged with having retained unauthorized control over the property of the owner. (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a).) “Owner” is defined broadly as “a person, other than the offender, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.” (Ill. Rev. Stat. 1977, ch. 38, par. 15 — 2.) The State argues, and we agree, that this definition renders proof of corporate existence unnecessary. The definition is devoid of any indication that the General Assembly intended that corporate existence of a theft victim be a material element of the offense of theft. To prove the offense, it need only be shown that someone other than the accused possessed or held an interest in the property and that the accused was unauthorized in exerting control over that property. In reading the broad statutory definition of “owner,” we perceive an intention on the part of the legislature, in enacting the Criminal Code of 1961, to abolish the ritualistic requirement of proof of corporate existence perpetuated by then recent cases such as People v. Gordon (1955), 5 Ill. 2d 91, 95-96. (Cf. Ill. Ann. Stat., ch. 38, par. 16 — 1, Committee Comments, at 18 (Smith-Hurd 1977) (“the Committee intended to codify the entire range of offenses against property *** and to abolish completely the labels and highly technical distinctions which had developed through centuries of case law and statutory amendments”).) Following enactment of the Criminal Code of 1961, decisions of the appellate court, with few exceptions (People v. Cowan (1977), 49 Ill. App. 3d 367, 368-69; People v. McAllister (1975), 31 Ill. App. 3d 825, 826, 830; People v. Baskin (1969), 119 Ill. App. 2d 18, 21-22), have reiterated the proof requirement expressed in Gordon and other cases decided before enactment of the Code, without considering whether the Code’s expanded definition of “owner” obviates the need for proof of corporate existence (see, e.g., In re W.S. (1979), 75 Ill. App. 3d 1048, 1050; People v. Boone (1977), 55 Ill. App. 3d 83, 87-88; People v. Cassman (1975), 32 Ill. App. 3d 456, 457-58; People v. Sims (1975), 29 Ill. App. 3d 815, 817-18). We are now squarely presented with that issue, since the record before us is devoid of competent evidence of corporate existence of the theft victim, and we hold that the absence of such evidence is not fatal to the State’s case.

As in Berland and McGuire, the question of prejudice to the accused is of greater concern to us than the need to comply with overly technical proof requirements. We noted in Berland, for example, that a clear specification of charges would enable the accused to prepare a defense and would protect him from double jeopardy. (People v. Berland (1978), 74 Ill. 2d 286, 312.) The same is equally true here. Respondent was adequately informed of the charges and protected from a second prosecution, since the charging documents and the evidence clearly indicated that he was accused of stealing specified items of property, from a specified store, on a specified date. Reference to this opinion and the record herein will show that the charge here prosecuted was the theft of five leather coats from a store named “Jean Nicole” in the St. Clair Square shopping center, Fairview Heights, Illinois, on November 3, 1977. Proof of corporate existence has no bearing on the question of guilt of the underlying charge, and the sufficiency of the State’s proof thereof should not be questioned.

For the foregoing reasons, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE WARD,

concurring:

The appellate court erred in considering that the petition to revoke probation had to meet what the court deemed to be the evidentiary requirements for a prosecution for theft. It went on to reverse the trial court’s revocation of probation on the ground that the State did not prove the corporate existence of the stolen property. The appellate court’s misapprehension has misled the majority into discussing at length whether proof of corporate existence is necessary in a prosecution for theft and in a proceeding to revoke probation on the ground of theft.

Of course whether or not to revoke probation is a question within the discretion of the trial court, and unless discretion is abused a court of review will not disturb an order of revocation. People v. Sims (1965), 32 Ill. 2d 591, 596; People v. Pelikan (1955), 6 Ill. 2d 275, 277.

The revoking of probation was not, on the evidence, an abuse of discretion. The minor and another young man were observed on November 3 carrying leather coats from the shopping center with the tags still on the sleeves, throwing them into a garbage can and then running into a Sears store. A clerk at Jean Nicole testified that she had observed the minor in the store on November 3, that the retrieved coats were of the kind sold by the store and that the tags were similar to those on coats at Jean Nicole. The assistant manager of the store testified that she had waited on the minor when he had looked at leather coats on that day. Detective Dean Floyd stated that he had taken a statement from the minor in which he admitted that he had been in the shopping mall for the purpose of shoplifting leather coats.

I would point out, too, that though the majority refers to it, it does not consider that the trial court, in revoking the minor’s probation, “cited a history of offenses of increasing severity, the inability of his parents to control him, and the exhaustion of rehabilitative measures.”

Whether or not the trial court abused discretion was the question for the appellate court, and it is now the question for us.


author: MR. JUSTICE RYAN

text:
    (No. 52721.
    EDWARD T. O'CONNOR, County Treasurer, Appellant, v. A & P ENTERPRISES et al., Appellees.

      Opinion filed June 20, 1980.

      Michael M. Mihm, State’s Attorney, of Peoria (Roberta L. Szydlowski, Assistant State’s Attorney, of counsel), for appellant.
    Baudino & Potter, of Farmington (John C. Potter, of counsel), for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

More than 500 owners of real estate in Peoria County paid their taxes under protest and, upon application for judgment by the county collector, filed objections. The objectors rely upon Public Act 80 — 247, which established a new procedure for placing valuation on farmland, farm buildings and farm dwellings. The objectors also contend that the “multiplier” was wrongfully applied to the assessment of farm property. The collector contends that Public Act 80 — 247 is unconstitutional and that the “multiplier” was properly applied to the assessed valuation of farmland. The circuit court of Peoria County upheld the validity of the act in question but certified that more than 500 objections to the application for judgment contained a common question of law and that the resolution of the constitutionality of Public Act 80 — 247 would “materially advance the termination of the more than 500 tax objection cases now pending.” The collector filed an application for leave to appeal from the order of the court pursuant to our Rule 308 (73 Ill. 2d R. 308). The appellate court allowed the collector’s application for leave to appeal. The objectors then filed a motion for leave to transfer the case to this court pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)), which motion was allowed.

Thus, two issues are before this court: (1) whether Public Act 80 — 247 is constitutional, and (2) if so, whether the equalizing factor or multiplier established by the board of review to equalize assessments between the townships shall be applied to property assessed in accordance with the provisions of Public Act 80 — 247.

Public Act 80 — 247 was enacted by the General Assembly in 1977 and established a different procedure for fixing the assessed valuation of farm property from that formerly employed, and from that now employed in determining the assessed valuation of other real property. Public Act 80 — 247 added sections 20e and 20f to the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, pars. 501e, 501f) and amended certain other sections, including section 1, wherein a definition of “farm” was incorporated in section 1(25) (Ill. Rev. Stat. 1977, ch. 120, par. 482(25)). Section 20e provides essentially that the farm value formula for arriving at the value of the best grade of farmland within the county will be determined by the Department of Local Government Affairs, using the value per acre of agricultural products sold, the average value per acre of principal crops for the most recent three years, plus 10% of the average sale price per acre for the same 3-year period. This section further provides that farmland of lesser value than that classified as the highest or best grade within the county shall be valued for assessment purposes by local assessment officials on the basis of its productivity. The specific language used in Public Act 80 — 247 will be quoted below in the discussion of the various challenges to its validity and application.

In Hoffmann v. Clark (1977), 69 Ill. 2d 402, this court distilled from the proceedings of the constitutional convention the breadth of the authority of the General Assembly to raise revenue through taxation under the 1970 Constitution. This court there construed that authority broadly, and declined, through judicial interpretation of constitutional provisions, to fulfill the fears of the convention Committee on Revenue and Finance by placing a narrow and unintended limitation upon the General Assembly’s authority in the field of taxation. (Hoffmann v. Clark (1977), 69 Ill. 2d 402, 424.) In considering the challenges to Public Act 80 — 247, we must accord similar deference to the legislature and not limit or curtail, through judicial construction, the revenue powers which are plainly vested in the General Assembly. The Act should be liberally construed to achieve a discernible purpose. We must also be guided by the accepted principle that legislative enactments are presumed constitutional and that reasonable doubts concerning the validity of a statute must be resolved in its favor. (North Shore Post No. 21 of the American Legion v. Korzen (1967), 38 Ill. 2d 231, 233.) In Hoffmann v. Clark this court upheld the legislature’s classification of farm property for special treatment for assessment purposes. The provisions of Public Act 80 — 247 again specially classify farm property for assessment purposes and provide another method for fixing its assessed value. The legislature’s authority to classify is not challenged. The validity of the Act is challenged on several other grounds, however.

We first consider the collector’s contention that, under the provisions of the enactment defining “farm” found in section 1(25) of the Revenue Act of 1939, improvements on the farm that are neither currently in use, nor contribute toward the productivity of the farm, are not to be included in the valuation. This, it is argued, constitutes an exemption from taxation. Article IX, section 6, of the Constitution of 1970 authorizes the General Assembly to exempt certain kinds of property from taxation. Since improvements on farm property do not fall within any class authorized to be exempt from taxation by the Constitution, it is argued that this statute exempting improvements to farm property from taxation is unconstitutional.

We do not agree that this provision constitutes an “implied exemption of property from taxation.” It is, instead, a recognition by the legislature that certain structures located on a farm may have become obsolete by changes in farming methods or practices, and either have a greatly diminished value, or possibly no value at all in connection with the farming operation when considered as a part of the farm as a whole. The corncrib, once an essential structure on every farm for the storage of ear corn, has become primarily a relic of the past, due to the almost universal practice of combining the corn and drying and storing it as shelled corn. Horse barns now stand idle due to the disappearance of the use of horses for the powering of farm machinery, and many dairy barns are no longer used because of the decrease in the number of small dairy herds. The legislature has provided that these buildings should be valued on the basis of their contribution to the farm operation. If they are used for either their intended purpose, or for a substitute purpose, the appropriate value can be placed on them. Section 1(25) of the Revenue Act of 1939 provides that these buildings shall continue to be valued as a part of the farm. If they contribute nothing to the productivity of the farm then, of course, the buildings would add nothing to the value of the farm. Being valued as a part of the farm, the failure to place a value on these buildings is a method or procedure of valuation and not an exemption from taxation. Just as a well that is no longer usable or a shade tree that is dead does not enhance the value of the farm, a bam or a corncrib that is not usable adds nothing to the value of a farm.

The collector’s principal contention is that Public Act 80 — 247 is so vague, indefinite and uncertain that men of ordinary intelligence must guess at its meaning and differ in their application of the Act, which, it is argued, renders the Act unconstitutional as a violation of due process. First, the collector contends that the definition of the word “farm” as used in section 1(25) of the Revenue Act of 1939, is vague and insufficient. Section 20e provides:

“Any owner of a ‘farm’, as defined in Section 1 of this Act, *** shall be eligible for a farm value assessment on such farm real property pursuant to this Section.” (Ill. Rev. Stat. 1977, ch. 120, par. 501e.)

Section 1(25) of the Revenue Act defines “farm” as follows:

“ ‘Farm’ when used in connection with valuing land and buildings for an agricultural use shall mean any parcel of land used solely for the growing and harvesting of crops; for the feeding, breeding and management of livestock; for dairying or for any other agricultural or horticultural use or combination thereof; including, but not limited to, hay, grain, fruit, truck or vegetable crops, floriculture, mushroom growing, plant or tree nurseries, orchards, forestry, sod farming and greenhouses; the keeping, raising and feeding of livestock or poultry, including dairying, poultry, swine, sheep, beef cattle, ponies or horses, fur farming, bees, fish and wildlife farming.” Ill. Rev. Stat 1977, ch. 120, par. 482(25).

We view the definition of “farm” in section 1(25) as being rather specific, much more so than the term “used for farming or agricultural purposes” contained in section 20a — 1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 501a — 1), which was construed by this court in Hoffmann v. Clark. It is not necessary that each term used in the statute be specifically defined and that the exact application of the statute to all factual variations be delineated therein. The application of the statute is of necessity placed in the hands of the various assessment officers and administrative bodies which, in turn, have the express and implied authority to adopt rules for the guidance of persons involved in the assessment procedure and assure the uniform application of the statute. (Turner v. Wright (1957), 11 Ill. 2d 161, 173; see, e.g., Ill. Rev. Stat. 1977, ch. 120, pars. 494, 592.2.) The Department of Local Government Affairs was granted the authority to prescribe rules and regulations for local assessment officers relevant to the assessment of real property. (Ill. Rev. Stat. 1977, ch. 120, par. 611(3).) Thus, the local assessment officers, in applying the Act, will not be left to conjecture as to the meaning of certain words and phrases used by the legislature, but will be guided by, and an acceptable degree of uniformity will be achieved by, the rules and regulations adopted for the guidance of assessment officers. If there are borderline cases where the Act is erroneously applied, these uncertainties can be resolved through judicial interpretation. The fact that such borderline cases exist will not, however, render the statute unconstitutional. (See Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, 427; Stein v. Howlett (1972), 52 Ill. 2d 570, 580.) Also, the fact that there may occur a misapplication of the statute will not render it invalid. (Hoffmann v. Clark (1977), 69 Ill. 2d 402, 427.) The collector’s concern that because of an absence of definitions in the amendment he will be subjected to penalty for inadvertently wrongfully applying the statute is unfounded.

Related to the above argument is the collector’s contention that the meaning of the language in section 20e, quoted above, that provides any owner of a “farm” shall be eligible for farm value assessment is unclear. It is argued that the amendment fails to provide a mechanism by which its benefits may be obtained. The collector points out that, in order to realize the benefits of other statutes providing for special tax treatment (Ill. Rev. Stat. 1977, ch. 120, pars. 500, 501a-l, 501b-l, 501d-l, 501g — 1), some positive action must be taken by the property owner. Under these other statutory provisions, the exceptions to the usual procedures do not automatically apply. In section 20e of the Revenue Act of 1939, however, it is simply provided that the farm owner shall be “eligible” for a farm value assessment. It is argued that the section does not provide for an automatic application of farm-value assessment and that there is no direction to the collector as to when and under what circumstances a farm value assessment is to be applied. The collector contends that the amendment is incomplete and invalid. We think that the reading of the Revenue Act of 1939 as amended by Public Act 80 — 247 makes clear the legislative intent that the assessment procedure provided by the amendment is to be automatically applied to farmland, in the absence of some action taken which brings into play other sections of the Revenue Act of 1939. Since there is no provision for granting a farm-value assessment upon application, the provisions of the amendment would be meaningless if they were not to apply automatically. We must assume that the legislature, when it adopted Public Act 80 — 247, intended to enact an assessment procedure capable of being used. Although the statute could be more clearly drawn, the intent of the legislature is obvious. In Hamer v. Kirk (1976), 65 Ill. 2d 211, 218, this court declined to hold a revenue statute unconstitutionally vague, stating:

“Although we agree section 146 is scarcely a model of statutory draftsmanship, its intent and operation are discernible.”

This court has held that doubt and uncertainty as to the constitutionality of an act are, where possible, to be resolved in favor of its validity. (People ex rel. Dolan v. Dusker (1952), 411 Ill. 535, 540; People v. Robinson (1939), 372 Ill. 503, 505.) We find, as this court did in Hamer v. Kirk, that the intent and operation of Public Act 80 — 247 are discernible and hold that, under section 20e of the Revenue Act of 1939, an owner of a farm shall be automaticaHy eligible for a farm-value assessment and the assessment of the farm shall be made in accordance with the provisions of Public Act 80 — 247.

In 1979 the General Assembly adopted Public Act 81 — 774, which amended section 20e, changing the language questioned by the collector. The words “any owner” and “eligible for farm value assessment on such farm real property” have been deleted. The section now reads, “The equalized assessed value of a ‘farm’ *** shall be determined pursuant to this Section.” (Ill. Rev. Stat. 1979, ch. 120, par. 50le.) There is now no question but that the assessment procedures of section 20e apply automaticaHy. A material change in a statute made by an amendatory act is presumed to change the original statute. (1A Sutherland, Statutes and Statutory Construction sec. 22.30, at 179 (1972); Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93, 107.) However, the circumstances surrounding the enactment of an amendment must be considered. If they indicate that the legislature intended to interpret the original act, the presumption of change wiU be rebutted. An amendment of an unambiguous statute indicates a purpose to change the law, while no such purpose is indicated by the mere fact of an amendment of an ambiguous provision. (1A Sutherland, Statutes and Statutory Construction sec. 22.30, at 179 (1972).) This court has held that a subsequent amendment is an appropriate source of discerning legislative intent. (People v. Bratcher (1976), 63 Ill. 2d 534, 543; People v. Scott (1974), 57 Ill. 2d 353, 358.) The amendment to section 20e by Public Act 81 — 774 creates no new right and does not purport in any way to change the application of section 20e. It is clear that the purpose of the amendment was to clarify the ambiguity which the coHector contended existed as to whether or not the assessment procedures applied automatically to farm real estate.

The collector poses numerous hypothetical situations which he contends demonstrate the lack of guidance to an assessment officer in assessing farm dwellings, the land on which farm dwellings are located, and farm improvements. The General Assembly has prescribed enough affirmative tests as to what is a farm that a person of reasonable intelligence can carry out his duties of assessing farms and the improvements located thereon. Section 1(25) provides that improvements shall be assessed as a part of the farm when they contribute to the operation of the farm. Obviously, if the buildings are not being used in connection with the farm but are being used for some other operation, such as a warehouse or a gift shop, they should not be assessed as a part of the farm. This does not mean that these buildings would not be assessed at all, as the collector suggests, but simply means they would not be assessed as farm property. This section does not prohibit these buildings from being assessed as non-farm property. There may be occasional instances where it will be difficult to determine whether a building should be assessed as a part of the farm, or as nonfarm property. This fact, however, does not render the Act invalid as being vague and uncertain, or for failing to give adequate guidance to those who must administer the Act. (City of Decatur v. Kushmer (1969), 43 Ill. 2d 334.) These situations can be resolved through the established administrative and judicial procedures for determining questioned or disputed assessment issues.

The collector also finds uncertainty in the provisions for assessing farm dwellings. Section 1(25) provides:

“The parcels of real property on which farm dwellings are immediately situated shall be assessed as a part of the farm but valued pursuant to the provisions of subsection (24) of Section 1 of this Act.” (Ill. Rev. Stat. 1977, ch. 120, par. 482(25).)

The collector contends that this provision is confusing and gives no guidance for determining what constitutes the parcel of real estate on which the farm dwelling is immediately situated. We believe that common sense and the above-referred-to procedures provided for resolving assessment disputes will dissipate the fog of uncertainty.

For the above reasons we do not agree with the collector’s contention that the provisions of Public Act 80 — 247 are so vague and indefinite that men of ordinary intelligence must guess at their meaning and differ in their application and constitute a denial of due process to those charged with their implementation.

The collector next advances several agruments concerning the application of equalizing factors or multipliers to farmland assessed under section 20e. Although part of the argument relates to his previous contention concerning vague and indefinite provisions, the arguments can be answered as a whole by the general statement that farm property assessed under section 20e is, with the exception of farm dwellings, not subject to the traditional assessment equalizing procedures. Section 108a of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 589.1) provides for equalizing assessments within the county by the board of review. That section excludes property assessed under section 20e in the determination by the board of review of the percentage relationship in the various taxing districts between the valuations of locally assessed property and the estimated 33 1/3% of the fair cash value of such property. After this percentage relationship is determined for each assessing district, this same section of the Act exempts the application of the ratio thus determined to property assessed in accordance with section 20e. Finally, in providing for the equalizing of assessments throughout the State by the Department, property assessed under section 20e is excluded in determining the multiplier to be applied to the property in each county. (Ill. Rev. Stat. 1977, ch. 120, par. 627.) In equalizing the assessed value of property in a county by the application of the multiplier as determined by the Department, property assessed under section 20e is again specifically exempt. (Ill. Rev. Stat. 1977, ch. 120, pars. 627, 629a.) Thus, neither the equalizing factor determined by the board of review to equalize assessments within the county, nor the equalizing factor determined by the Department for the broader equalizing of assessments throughout the State, is to be applied to property assessed under section 20e. As noted below, the purpose of applying the equalizing factors is to achieve an assessed value of 33 1/3% of the cash value of the property, whereas section 20e is designed to produce a lower assessed value related to the productivity of the farmland.

Nor do we see any infirmity in the failure of section 20e to provide for a method of computing an equalizing factor or multiplier for the purpose of equalizing assessed valuations within a county for assessments of farmland of lesser value than the best or highest grade in the county. Although the board of review has no authority to apply equalizing multipliers determined as provided in section 108a of the Revenue Act of 1939 to land assessed as farmland under section 20e, it has the authority to increase or decrease assessments under section 108 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 589). Section 20e provides that the assessments of farmland of lesser value shall be made by local assessing officials and not solely by the local assessors. Thus all of the local assessing officials, including the assessor, the supervisor of assessments, and the board of review, may be involved in fixing this assessed value. By exercising its authority under section 108 of the Revenue Act of 1939, the board of review can assure a degree of uniformity of assessment among the various grades of farmland assessed under section 20e according to its productivity without applying any percentage multiplier to an entire assessment district as it does under section 108a.

The question has been raised as to whether or not the equalizing ratio or multiplier of the board of review and of the Department are to be applied to improvements located on the farm. As to improvements other than farm dwellings, section 1(25) of the Revenue Act of 1939 provides that they are to be assessed as a part of the farm and shall be valued upon their current use and their respective contribution to the productivity of the farm. Since the object of applying the equalizing factor is to secure an assessed value of 33 1/3% of the fair cash value of the property (Ill. Rev. Stat. 1977, ch. 120, pars. 589.1, 627), the multiplier should not be applied to these improvements. The contribution of these improvements to the productivity of the farm may have no relation to their fair cash value or 33 1/3% of their fair cash value. A different standard from fair cash value is used in fixing the assessed value of these improvements. It is therefore not appropriate to apply a multiplier that is designed to arrive at a uniform assessed value of 33 1/3% of the fair cash value.

The intent of the legislature as manifested in section 20e and section 1(25) of the Revenue Act of 1939 is different, however, as to farm dwellings. Section 20e speaks only of the assessment of farmland and refers to section 1 of the Act as to the meaning of the word “farm.” In section 1(25), as noted above, it is provided that farm improvements other than dwellings are to be valued upon their current use and contribution to the productivity of the farm. However, section 1(25) also provides:

“The parcels of real property on which farm dwellings are immediately situated shall be assessed as a part of the farm but valued pursuant to the provisions of subsection (24) of Section 1 of this Act.” (Ill. Rev. Stat. 1977, ch. 120, par. 482(25).)

There is no specific reference in section 1(25) to the assessment of farm dwellings but only to the parcels of real property upon which farm dwellings are immediately situated. There is no indication that farm dwellings, which are specifically excepted from being assessed as other improvements on the farm, should be assessed separately from the real property on which they are located. It must therefore be assumed that farm dwellings are to be valued together with the real property on which they are situated. Subsection (25) provides that this value is to be pursuant to the provisions of subsection (24) of section 1, which provides:

“The term ‘33 1/3%’ means 33 1/3% of the actual value of real and personal property, as determined by the Department’s assessment to sales ratio studies for the 3 most recent years preceding the assessment year ***.” (Ill. Rev. Stat. 1977, ch. 120, par. 482(24).)

This section does not provide a method for placing a value on real property. It instead is a definition of the term “33 l/3%” and specifies how it is to be determined. However, the reference to subsection (24) indicates that farm dwellings are to be valued differently from the method used in valuing farmland and other improvements on the farm. The reference to subsection (24) must be viewed as an expression of legislative intent that farm dwellings be valued in the same manner as other property, that is, at 33 1/3% of their fair cash value. Such being the case, the equalizing factor of the board of review and the Department would be applicable to the assessed value of farm dwellings.

Admittedly, the provision for assessing farm dwellings found in section 1(25) is not clear and the intent of the legislature can be ascertained only through statutory construction. However, as noted earlier in this opinion, on September 16, 1979, Public Act 81 — 774 was approved. In addition to the change previously noted, Public Act 81 — 774 also amended section 1(25) of the Revenue Act of 1939. The provision of subsection (25) relating to the assessment of farm dwellings now reads:

“The dwellings and parcels of real property on which farm dwellings are immediately situated shall be assessed as a part of the farm.” (Ill. Rev. Stat. 1979, ch. 120, par. 482(25).)

The amendment thus specifically provides that dwellings be assessed, and the reference to subsection (24) of section 1 is omitted. Public Act 81 — 774 also adds section 20g to the Revenue Act of 1939, which provides:

“Each farm dwelling and' appurtenant structures and the tract upon which the dwelling and appurtenant structures are immediately situated shall be assessed by the local assessing officials at 33 1/3% of its fair cash value. Such assessment shall be subject to the equalization factor determined by the Department in accordance with Sections 146 through 151a of this Act.” (Ill. Rev. Stat. 1979, ch. 120, par. 501g.)

Section 20g makes it clear that farm dwellings and appurtenant structures and the land on which they are immediately situated are to be assessed at 33 1/3% of their fair cash value and the equalizing factors of normal assessment procedure are to be applied. This amendment clarifies the ambiguity that existed in section 1(25) of the Revenue Act of 1939 as to the assessment of farm dwellings. It is appropriate to consider this subsequent amendment in ascertaining the meaning of the ambiguous provisions of section 1(25) of the Revenue Act of 1939. People v. Bratcher (1976), 63 Ill. 2d 534, 543; People v. Scott (1974), 57 Ill. 2d 353, 358.

In summary, we hold that the constitutional chaHenges of the collector to Public Act 80 — 247 are without merit. We hold that the equalizing factors of the board of review and of the Department do not apply in fixing the assessed value of farmland or improvements thereon other than farm dwellings. As to farm dwellings and their appurtenances and the real property on which they are immediately situated, we hold that these are to be valued at 33 1/3% of their fair cash value and that the equalizing factors of the board of review and of the Department are to be applied thereto.

The judgment of the circuit court of Peoria County denying the collector’s motions to strike and to dismiss the objections filed to the application for judgment is affirmed except insofar as the denial of these motions relates to the assessment of farm dwellings, their appurtenances, and the real property on which they are immediately situated, and the cause is remanded to the circuit court of Peoria County for further proceedings.

Affirmed in part and reversed in part and remanded.