author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51250.
    SILVER MANUFACTURING COMPANY et al., Appellees, v. GENERAL BOX COMPANY, Appellant.

      Opinion filed May 24, 1979.

      Sweeney & Riman, Ltd., of Chicago (Elliot R. Schiff and John Grove, of counsel), for appellant.
    John M. Lamont and Timothy J. Reuland, of Reid, Ochsenschlager, Murphy & Hupp, of Aurora (James F. Whitfield, of Wheaton, of counsel), for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Following our decision in Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, and the issuance of the mandate, the third-party plaintiff, Silver Manufacturing Company (hereafter plaintiff), moved in the circuit court that the cause be reinstated (Supreme Court Rule 369 (58 Ill. 2d R. 369)). The motion was allowed, and the third-party defendant, General Box Company (hereafter defendant), moved that the order reinstating the cause be vacated. Following oral argument and filing of memoranda the motion to vacate was denied. In its order the circuit court made findings requisite to an interlocutory appeal (Supreme Court Rule 308 (58 Ill. 2d R. 308)) and identified as the question of law involved “whether or not this litigation is exempted from the prospective application of the rule of contribution pronounced in the case of Skinner vs. Reed-Prentice Packaging Co., Supreme Court No. 48757, Robinson vs. International Harvester, Supreme Court No. 49205, and Stevens vs. Silver Manufacturing Company, Supreme Court No. 48974.” The appellate court allowed defendant’s motion for leave to appeal, and we allowed defendant’s motion filed pursuant to Rule 302(b) (58 Ill. 2d R. 302(b)) that the appeal be taken directly to this court.

Defendant states in its brief that it does not intend “to argue this Court’s intention of including or excluding the instant action from the prospective application of the ‘contribution rule’.” It asserts that its argument is confined to the questions of “the permissibility of a purely prospective application” and “the appropriateness of doing so here.” Citing many authorities and hypothesizing numerous problems which may arise if this action is exempted from the prospective application of the earlier decision, it argues that the order reinstating the cause in the circuit court should be vacated.

Simply stated, defendant’s argument is that the parties and others relied upon the “contribution rule” allegedly abolished by our earlier opinion and that “the equities clearly run in a purely prospective operation here.” They suggest that “A purely prospective application will permit this Court to declare a rule of law but not be bound by particular facts peculiar to this appeal.” Although defendant has predicated much of its argument on matters not found in the record, we point out that the facts upon which our earlier opinion was based are not those dehors the record to which defendant refers, or which it hypothesizes, but are those facts which were alleged in the third-party complaint and, for purposes of defendant’s motion to dismiss, taken as true.

The earlier opinion in this case did not specifically except this cause of action from the prospective application of the decision, but explicitly provided that “the cause is remanded to the circuit court of Kane County for further proceedings consistent with this opinion.” (70 Ill. 2d 41, 46.) Had the court intended that the decision not apply to this case and that it not be exempted from the prospective application, there would have been no reason to remand the cause for further proceedings. Excepting the cause in which the decision is rendered has consistently been the practice in cases involving torts. (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326; Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348.) In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, cited by defendant in support of its argument, we recognized a cause of action for retaliatory discharge of an employee for filing a claim for workmen’s compensation. We permitted the plaintiff to recover compensatory damages pursuant to the newly recognized cause of action, but denied recovery of punitive damages for the reason that “the function of punitive damages is similar to that of a criminal penalty, i.e., as a punishment to the wrongdoer and as a means to deter such a wrongdoer and others from committing like offenses in the future. (See Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31.) Because of their penal nature, punitive damages are not favored in the law, and the courts must take caution to see that punitive damages are not improperly or unwisely awarded. (See Eshelman v. Rawalt (1921), 298 Ill. 192, 197.) Adherence to this rule compels us to conclude that punitive damages should not be awarded where, as here, the cause of action forming the basis for their award is a novel one.” (74 Ill. 2d 172, 187-88.) The contribution involved in Skinner was not penal in nature; thus, the reason for prospective application present in Kelsay is not found here. Defendant’s reference to our recent decision in In re Friedman (1979), 76 Ill. 2d 392, is inapposite for the reason that Friedman involved a disciplinary matter, also penal in nature.

Although that case involved the application of a Federal constitutional right we find apposite the observation of the Supreme Court in Stovall v. Denno (1967), 388 U.S. 293, 301, 18 L. Ed. 2d 1119, 1206, 87 S. Ct. 1967, 1972:

“Sound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in- concrete cases or controversies, and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law, militate against denying Wade and Gilbert the benefit of today’s decisions. Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.” (Footnotes omitted.)

For the reasons stated, the order of the circuit court is affirmed.

Order affirmed.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 51423.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GREGORY FIFE, Appellee.

      Opinion filed June 8, 1979.

      William J. Scott, Attorney General, of Springfield, and Nolan Lipsky, State’s Attorney, of Petersburg (Donald B. Mackay, Melbourne A. Noel, Jr., and Casimir J. Batnik, Assistant Attorneys General, of Chicago, and Robert C. Perry, of the State’s Attorneys Appellate Service Commission, of counsel), for the People.
    John E. Brosboll, of Petersburg, for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Gregory Fife, was found guilty of the unlawful delivery of more than 30 grams but less than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1975, ch. 561/2, par. 705(d)) by a jury in the circuit court of Menard County. On its own motion, the appellate court remanded to the circuit court for an evidentiary hearing to determine whether defendant’s court-appointed trial counsel had a conflict of interest. At the hearing, defendant’s trial counsel testified she thought she had informed him that she was a special assistant Attorney General — limited to workmen’s compensation cases — but defendant testified he did not learn of this until after he had been convicted and started serving his sentence. The record does not show what the circuit court decided on this question, but in oral argument before us, the Attorney General conceded there was no effective waiver by the defendant. The Appellate Court for the Fourth District reversed the conviction, reasoning there was a conflict of interest, and remanded for a new trial over a dissent (65 Ill. App. 3d 805). The appeal is before us on a certificate of importance issued by the appellate court (58 Ill. 2d R. 316).

At the time counsel here was appointed to represent the defendant, the Attorney General prohibited his staff members from representing defendants in criminal cases. Subsequently, on July 1, 1978, this prohibition was significantly modified in section 5 of the Attorney General’s internal code of conduct:

“No part-time staff member, no Special Assistant Attorney General, and no firm of which such staff member or Special Assistant is a partner or associate may represent or defend any person other than the State of Illinois in any criminal action filed in any court of this State, except as permitted by paragraph (b) following.
(b) The Attorney General or the Deputy Attorney General may, in his discretion, make specific exceptions to subparagraph (a) of this Section in unusual circumstances. Application for exceptions shall be made by the Special Assistant or part-time staff member in writing to the Attorney General. The writing shall state that the applicant believes that representation by applicant or by a member or associate of his firm of a particular person or of particular persons charged with a misdemeanor or felony (i) will not violate any provisions of this Code, other than Section 5; (ii) that the applicant has made disclosure in writing of the possible conflict of interest by reason of his employment by the Attorney General and obtained the client’s written waiver thereof; and (iii) that the circumstances justify the exception together with the grounds for such belief. Action taken by the Attorney General on such application shall be taken promptly and shall be given in writing to the applicant. Any such application must be accompanied by a photocopy of the applicant’s written disclosure to his client of a possible conflict of interest and by a photocopy of the client’s written acknowledgment of receipt of the disclosure and his waiver of the conflict of interest.”

The Attorney General argues that where he appoints a special assistant Attorney General who is limited to specified work such as here, where the attorney represented him in workmen’s compensation cases involving State employees, no actual conflict of interest is created when that attorney represents a defendant in a criminal case. Accordingly, the Attorney General urges us not to adopt a rule of per se violation in cases in which defense counsel are also special assistant attorneys general for specified noncriminal matters. Such a rule is not dictated, he believes, by this court’s decisions in People v. Coslet (1977), 67 Ill. 2d 127, People v. Kester (1977), 66 Ill. 2d 162, People v. Meyers (1970), 46 Ill. 2d 149, and People v. Stoval (1968), 40 Ill. 2d 109. (These decisions established rules of conflict of interest, but none involved the Attorney General.) Moreover, such a rule of conflict of interest would cause hardship to the State in that it would be difficult to appoint attorneys special assistant attorneys general in less populated counties with few attorneys. The defendant, on the other hand, contends that the constitutionally mandated right to effective assistance of counsel requires an undivided loyalty to a defendant, such as would justify reversal of his conviction here. The defendant does not believe that counsel here was anything less than diligent, but he does posit the possibility of her susceptibility — or the susceptibility of any attorney in this situation — “to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous manner. ” (People v. Kester (1977), 66 Ill. 2d 162, 167.) The defendant contends, then, that our adoption of a rule of per se conflict of interest, without necessitating a showing of actual prejudice, in this case is not only consistent with Stoval, Meyers, Kester and Coslet, but also dictated by them, no matter the hardship this may work on the ability of the Attorney General to carry out his duties throughout the State. Interestingly, not only are districts of the appellate court in conflict apropos of a rule of conflict of interest where defense counsel is affiliated with the Attorney General (e.g., People v. Pendleton (1st Dist. 1977), 52 Ill. App. 3d 241, cert. denied (1978), 435 U.S. 956, 55 L. Ed. 2d 809, 98 S. Ct. 1590, adopted the rule), but the fourth district is undecided: People v. Cross (1975), 30 Ill. App. 3d 199, adopted the rule which necessitates no showing of actual prejudice. Accord, People v. Fife, the instant case. Contra, People v. Crawford Distributing Co. (1978), 65 Ill. App. 3d 790, which overruled Cross, above, over a dissent; and People v. Rogers (1978), 64 Ill. App. 3d 290, with a dissent. Cf. People v. Fuller (1974), 21 Ill. App. 3d 437, with a dissent.

As this court noted in People v. Stoval (1968), 40 Ill. 2d 109, Glasser v. United States (1942), 315 U.S. 60, 69-70, 86 L. Ed. 680, 699, 62 S. Ct. 457, 464-65, determined that the “right to the effective assistance of counsel is a fundamental right and entitles the person represented to the undivided loyalty of counsel.” (40 Ill. 2d 109, 111.) This is a right which demands indulging “every reasonable presumption against *** [its] waiver.” (Glasser v. United States (1942), 315 U.S. 60, 70, 86 L. Ed. 680, 699, 62 S. Ct. 457, 465.) In Stoval, defense counsel was a member of a law firm whose clients were the burglarized jewelry store and its owner. This court reversed the conviction for burglary because effective “ ‘*** representation is lacking *** if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents *** are hobbled or fettered or restrained by commitments to others.’ ” (Emphasis added.) (People v. Stoval (1968), 40 Ill. 2d 109, 112.) Stoval adopted a rule of conflict of interest, “whereby allegations and proof of prejudice are unnecessary.” (People v. Coslet (1977), 67 Ill. 2d 127, 133.) Glasser also figured significantly in the resolution of the conflict of interest in Coslet. In Coslet, the defendant, accused of murdering her husband, was represented by court-appointed counsel who also represented the administrator of the husband’s estate. This court reversed the conviction for voluntary manslaughter because, regardless of actual prejudice, the attorney had to preserve the assets of the estate, and conviction of the defendant would have enriched the estate since the defendant would then be barred from inheritance. Coslet endorsed the Stoval rule of per se conflict of interest essentially because the defendant could not be expected to know the “subtleties of the laws of descent and distribution” which gave rise to the conflict. (People v. Coslet (1977), 67 Ill. 2d 127, 135.) Stoval’s rationale was also the basis for this court’s decisions in People v. Kester (1977), 66 Ill. 2d 162 (a court-appointed assistant public defender had appeared earlier in the same proceeding as an assistant State’s Attorney), and People v. Meyers (1970), 46 Ill. 2d 149, 150-51 (defense counsel was approached by the wife of defendant, who had been drinking in a tavern prior to the burglary of which he was accused, to inquire about a possible dramshop action against the tavern; her recovery might have depended on the “length of time she was deprived of his support by virtue of his imprisonment”). Cf. People v. Franklin (1979), 75 Ill. 2d 173; People v. Vriner (1978), 74 Ill. 2d 329; People v. Berland (1978), 74 Ill. 2d 286; People v. Precup (1978), 73 Ill. 2d 7.

On the basis of these cases and given our concern for the right to effective assistance of counsel, we hold that a conflict of interest exists where defense counsel is a special assistant Attorney General, even though limited to specified noncriminal work, and his client in a criminal case is inadequately informed of the affiliation with the Attorney General and fails to effect a knowing and intelligent waiver. In such circumstances, actual prejudice need not be shown. Accordingly, we affirm the appellate court here because the defendant did not waive the conflict of interest. We note that the Attorney General shares our concern about this issue and has amended his internal code of conduct to reflect that concern.

We are concerned about the possible, perhaps subliminal pressure a defense counsel who is also a special assistant for workmen’s compensation cases might receive from the Attorney General’s office, but we believe that problem is nullified or significantly lessened by complete and effective disclosure, by effective, knowledgeable waiver, and by the fact that special assistants are engaged in duties of a noncriminal nature and of specifically defined scope, wholly unrelated to their private employment. See Professional Ethics Opinion No. 335, 59 Ill. B.J. 333 (1970), and No. 374, 60 Ill. B.J. 664 (1972).

Finally, there is no question that our holding is applicable to those cases in which a member of the same law firm has an affiliation with the Attorney General while another member represents a criminal defendant. See People v. Stoval (1968), 40 Ill. 2d 109. Cf. Barliant v. Follett Corp. (1978), 74 Ill. 2d 226, 237-38.

Although we give defendant here the benefit of today’s decision, we believe it should be only prospectively applied to cases involving prosecution for offenses occurring subsequent to the filing of this opinion. This may appear to be harsh to other similarly situated defendants but our rationale is the same as stated in Stovall v. Denno (1967), 388 U.S. 293, 301, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967, 1972, and as quoted in our opinion in Silver Manufacturing Co. v. General Box Co. (1979), 76 Ill. 2d 413, 417-18:

“Sound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies, and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law, militate against denying Wade and Gilbert the benefit of today’s decisions. Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.”

For the reasons above, we affirm the appellate court but with the qualification stated above.

Judgment affirmed.


author: PER CURIAM:

text:
    (No. 51521.
    JOHN DAVID NORMAN, Petitioner, v. RICHARD ELROD, Sheriff, et al., Respondents.

      Order entered March 21, 1979.

    Rick Halprin, of Halprin, Halprin 8c Cantor, Ltd., of Chicago, for petitioner.
    Bernard Carey, State’s Attorney, of Chicago, for respondents.
   PER CURIAM:

Petitioner seeks a writ of habeas corpus, claiming that he was incorrectly advised at the time of his plea of guilty that there would be no mandatory parole term following the expiration of his sentence. No claim is made that the trial court lacked jurisdiction over the subject matter or over defendant’s person, and habeas corpus is not available. (Hughes v. Kiley (1977), 67 Ill. 2d 261; Long v. Israel (1977), 56 Ill. App. 3d 14.) The motion by petitioner for leave to file a petition for an original writ of habeas corpus is denied, without prejudice to the right of petitioner to file a post-conviction petition in the trial court.

Motion denied.


author: MR. JUSTICE RYAN

text:
    (No. 50586.
    CHARLES P. BURTELL, Appellee, v. FIRST CHARTER SERVICE CORPORATION et al., Appellants.

      Opinion filed May 18, 1979.

    Rehearing denied September 28, 1979.

      Teitelbaum, Wolfberg, Guild & Toback, of Chicago (Ronald J. Guild and David A. Weininger, of counsel), and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, of counsel), for appellants.
    Feiwell, Galper 8c Lasky, Ltd., of Chicago (George S. • Feiwell, Michael A. Braun, and Bernard L. Rivkin, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The circuit court of Cook County, in a decree entered December 19, 1975, found the existence of a joint venture and ordered an accounting. Following a hearing on the statement of account and objections, the court, on June 1, 1976, entered judgment for $89,998.22 in favor of the plaintiff, Charles Burtell, and against defendant First Charter Service Corporation (defendant). The defendant filed a notice of appeal which stated that First Charter Service Corporation “appeals from the decree and judgment entered against it on June 1, 1976 in the sum of $89,998.22” and prayed that the reviewing court “reverse the judgment of June 1, 1976 and dismiss plaintiffappellee’s complaint or, in the alternative, reverse the judgment of June 1, 1976 and remand the case for anew trial.” Burtell did not challenge the sufficiency of the notice of appeal, and both he and the appellant, First Charter, briefed and argued questions involving the joint-venture finding and accounting decree of December 19, 1975, as well as the money judgment of June 1, 1976. During argument, the appellate court raised the question of the sufficiency of the notice of appeal and later held that the notice of appeal did not confer jurisdiction on the appellate court to consider the decree entered December 19, 1975. (57 Ill. App. 3d 198.) Although there are other issues which we will consider later, the threshold question involves the sufficiency of the notice of appeal.

The plaintiff, Charles Burtell, filed suit against First Charter and others alleging the existence of a joint venture between himself and the defendants with respect to the development of certain real property. He also sought an accounting. On December 19, 1975, the trial court entered an order denying relief as to the other defendants but as to defendant First Charter the court, in its decree, among other findings, found that a joint venture existed between Burtell and First Charter. In the ordering part of the decree the court ordered First Charter to account to the plaintiff as to all income, expenses and profits realized in connection with and attributed to the joint venture; directed the plaintiff to file its objections thereto within 14 days after the service of the accounting, and set the matter for hearing on January 21, 1976. The hearings resulted in the entry of the above-stated judgment on June 1, 1976, in favor of Burtell and against First Charter in the amount of $89,998.22.

Our Rule 303(c) (58 Ill. 2d R. 303(c)), provides for the form and content of the notice of appeal, and Rule 303(c)(2) states: “It shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” The appellate court in this case found that the notice of appeal was directed solely to the judgment of June 1, 1976, and made no mention of the previous decree of December 19, 1975, and that the prayer for relief was directed only at the June 1, 1976, judgment. The court concluded that it lacked jurisdiction to review the unspecified order of December 19, 1975.

It was formerly the law in this State that a decree such as the court entered on December 19, 1975, was appeal-able. (Altschuler v. Altschuler (1948), 399 Ill. 559, 569.) However, the court in Ariola v. Nigro (1958), 13 Ill. 2d 200, and Hanley v. Hanley (1958), 13 Ill. 2d 209, held that this rule was abrogated by section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1957, ch. 110, par. 50(2)), which the court held was designed to prevent piecemeal appeals. Section 50(2) provided that, if multiple parties or multiple claims for relief were involved, the court could make an order or judgment as to fewer than all the parties, or all the claims, final and appealable by an express finding that there was no just reason for delaying enforcement or appeal. Such an order or judgment would not be appeal-able absent such a finding. The contents of former section 50(2) of the Civil Practice Act are now incorporated in our Rule 304 (58 Ill. 2d R. 304). The December 19, 1975, decree contained no such finding by the trial court and therefore was not appealable. However, the appeal from a subsequent final judgment “draws in question all prior non-final orders and rulings which produced the judgment.” Elfman Motors, Inc. v. Chrysler Corp. (3d Cir. 1977), 567 F.2d 1252, 1253.

In any event, the notice of appeal must conform to the requirements of our Rule 303(c)(2) in that it must “specify the judgment or part thereof appealed from.” When a notice of appeal is perfected the trial court loses jurisdiction as to the judgment or part thereof from which the appeal is taken and, as to such matter, the case thereafter proceeds in the appellate court not as a new case but as a continuation of the case in the trial court. (Wolcott v. Village of Lombard (1944), 387 Ill. 621, 624; Francke v. Eadie (1940), 373 Ill. 500, 502; 6 C. Nichols, Illinois Civil Practice sec. 6131 (1975).) Thus, it is often stated that a notice of appeal confers jurisdiction on a court of review to consider only the judgments or part thereof specified in the notice of appeal. People v. Lowe (1975), 30 Ill. App. 3d 49, 51; People v. Harvey (1972), 5 Ill. App. 3d 499, 502; People v. Ilg (1965), 60 Ill. App. 2d 295, 298; accord, Elfman Motors, Inc. v. Chrysler Corp. (3d Cir. 1977), 567 F.2d 1252, 1254.

Although the cases often speak in terms of jurisdiction, it is generally accepted that a notice of appeal is to be liberally construed. The notice of appeal serves the purpose of informing the prevailing party in the trial court that the unsuccessful litigant seeks a review by a higher court. Briefs, and not the notice of appeal itself, specify the precise points to be relied upon for reversal. Courts in this State and the Federal courts have repeatedly held that a notice of appeal will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal. (Sanabria v. United States (1978), 437 U.S. 54, 67 n.21, 57 L. Ed. 2d 43, 56 n.21, 98 S. Ct. 2170, 2180 n.21 (interpreting comparable Federal rules); People ex rel. Pickerill v. New York Central R.R. Co. (1945), 391 Ill. 377, 380; City of Rockford v. Robert Hallen, Inc. (1977), 51 Ill. App. 3d 22; Department of Transportation v. Galley (1973), 12 Ill. App. 3d 1072.) Unless the appellee is prejudiced thereby, the absence of strict technical compliance with the form of the notice is not fatal, and where the deficiency in the notice is one of form only, and not of substance, the appellate court is not deprived of jurisdiction. Echols v. Olsen (1976), 63 Ill. 2d 270; National Bank of the Republic v. Kaspar American State Bank (1938), 369 Ill. 34.

In considering whether the notice of appeal in our case was sufficient to confer jurisdiction on the appellate court to review the trial court’s decree of December 19, 1975, we find the analysis of the requirements of Rule 3(c) of the Federal Rules of Appellate Procedure as stated in Elfman Motors, Inc. v. Chrysler Corp. (3d Cir. 1977), 567 F.2d 1252, helpful. When an appeal is taken from a specified judgment only, or from a part of a specified judgment, the court of review acquires no jurisdiction to review other judgments or parts thereof not so specified or not fairly to be inferred from the notice as intended to be presented for review on the appeal. If from the notice of appeal itself and the subsequent proceedings it appears that the appeal was intended, and the appellant and the appellee so understood, to have been taken from an unspecified judgment or part thereof, the notice of appeal may be construed as bringing up for review the unspecified part of the order or judgment. Such a construction would be appropriate where the specified order directly relates back to the judgment or order sought to be reviewed. Paraphrasing the language of Elfman, the unspecified judgment is reviewable if it is a “step in the procedural progression leading” to the judgment specified in the notice of appeal. 567 F.2d 1252, 1254.

Thus, in Wade v. Mississippi Cooperative Extension Service (5th Cir. 1976), 528 F.2d 508, the court held that a notice of appeal, which specified only the “order granting an injunction against the defendant” (528 F.2d 508, 511 n.3), would not limit the scope of the appeal to only the injunctive relief granted, but it authorized the reviewing court to also consider a supplemental order.

In Vigil v. United States (10th Cir. 1970), 430 F.2d 1357, the district court entered an order on December 24, 1968, dismissing the complaint and the action. The plaintiff thereafter sought leave to file an amended complaint, which motion was denied on January 31, 1969. The plaintiff’s notice of appeal stated that the appeal was taken from the order of January 31, 1969. The defendantappellee contended that the notice of appeal was defective. The court of appeals stated, “[A] lthough the notice of appeal is unambiguous and purports to appeal from the discretionary order of January 31, 1969, we think this incomplete compliance with rule 3(c) should not result in the loss of an intended appeal on the merits.” 430 F.2d 1357, 1357-58.

In Hitt v. Nissan Motor Co. (5th Cir. 1977), 552 F.2d 1088, the district court, in a class action, entered two orders relating to class notices. No timely appeal was taken from the first order, but a notice of appeal was filed as to the second order. The court of appeals held that the two notice orders were “sufficiently closely related to justify the review of both.” 552 F.2d 1088, 1096.

In keeping with the general holding that notices of appeal should be liberally construed, which we have noted above, and following the decision of the Federal courts, we hold that the notice of appeal in our case was sufficient to confer jurisdiction on the appellate court to review the decree of December 19, 1975. That decree finding the existence of a joint venture was but a preliminary determination necessary to the ultimate relief sought by the plaintiff, a money judgment based on an accounting. It was not separately appealable and, though not specifically designated in the notice of appeal, it was sufficiently closely related to the judgment of June 1, 1976, so that the notice of appeal specifying the June 1 judgment conferred jurisdiction on the appellate court to consider the prior decree, which was but a “step in the procedural progression leading” to the judgment of June 1, 1976.

Aside from the jurisdictional question involved, we also point out that the appellee was not misled or confused by the notice of appeal. In the appellate court it made no objection to the scope of review sought by the appellant, and it fully briefed and argued the issues raised by the appellant’s brief. The transcript of the accounting hearing contains a discussion had by the trial court and counsel at which the court stated the basis for its earlier determination that there was a joint venture. The discussion discloses that court and counsel expected that this determination would be reviewed on appeal. Under these facts, in the absence of an objection by the appellee, it would be contrary to the spirit of the Civil Practice Act and the rules of our court to deny the parties to this appeal a decision on the merits because of a technical defect in the notice of appeal.

Two other issues that were determined by the appellate court have been argued in this court. The appellate court reversed the trial court’s determination that the plaintiff was not entitled to an accounting with respect to principal and interest received by First Charter on a purchase-money mortgage it had received from the purchaser of the joint venture real estate. Also, the appellate court affirmed the trial court’s holding that First Charter was entitled to interest for advances that it had made on behalf of the joint venture at the statutory rate of 5% and not at the rate of 14% claimed by First Charter. Upon remand, if the appellate court reverses the trial court’s determination that there was a joint venture, these other issues will be moot. If, however, we do not now consider these issues and the appellate court affirms the trial court, these questions will not have been reviewed by this court. Although the petition for leave to appeal raises only the question of the appellate court’s holding as to the sufficiency of the notice of appeal, these other issues have been briefed in this court, and the full record is before us. In the interest of judicial economy, it is appropriate to decide these other questions at this time. We agree with the holding of the appellate court on both questions.

In the trial court plaintiff had objected to the accounting submitted by First Charter because it failed to include a statement of payments of principal and interest received by First Charter on the purchase-money mortgage it received when it sold the joint venture property. The trial court denied plaintiff’s claim, finding that, with the sale of the real estate, the joint venture terminated and plaintiff had no interest in the purchase-money mortgage. First Charter argues now that the purpose of the joint venture was the development of the real estate. When it could not be developed, it was sold and the joint venture profit, in which the plaintiff would have an interest, was the difference between the purchase price and the selling price, minus any expenses. A joint venture may be established without a specified formal agreement. There was none in this case. The trial court stated that the conduct of the parties was the basis for its decision finding the existence of a joint venture. A fiduciary relationship exists between members of the joint venture. Thus, in this case a fiduciary relationship existed between plaintiff and First Charter. (Reese v. Melahn (1973), 53 Ill. 2d 508, 513.) When a joint venture is found to exist, the legal principles pertaining to the relationship between partners govern. Section 21(1) of the Uniform Partnership Act (Ill. Rev. Stat. 1975, ch. IO6V2, par. 21(1)) provides:

“Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.”

Although the sale of the real estate by First Charter may have disposed of the assets of the joint venture, it would not extinguish the rights and obligations between the partners that arose from that relationship or that arose from the unauthorized dealing with its property. On dissolution, a partnership is not terminated but continues until the winding up of its affairs is completed. (Ill. Rev. Stat. 1975, ch. 1061/2, par. 30.) We find that the appellate court correctly held that the plaintiff had an interest in the proceeds of the sale of the joint venture property, including the purchase-money mortgage which First Charter received, and was entitled to an accounting as to the principal and interest received by First Charter under the mortgage.

Both the trial court and the appellate court found that First Charter was entitled to interest on its advancements at the rate of 5%. First Charter contends that the reasonable market rate of interest at the time in question was 14%. Section 2 of the interest statute (Ill. Rev. Stat. 1975, ch. 74, par. 2) provides that on all money lent or advanced for the use of another the rate of interest shall be 5% per annum. First Charter contends, however, that section 4 of the interest statute (Ill. Rev. Stat. 1975, ch. 74, par. 4) is applicable in this case. Section 4 provides that, on a business loan to a partnership, it is lawful “to charge, contract for, and receive” any rate of interest. This statutory provision does not authorize the recovery of interest in excess of the statutory rate of 5% unless there has been an agreement to that effect. (Schwitters v. Springer (1908), 236 Ill. 271, 275.) There was, in our case, no evidence of an agreement to pay First Charter any rate of interest. Therefore, it is entitled to interest for the money it advanced on behalf of the joint venture only at the statutory rate of 5% provided by section 2 of the Interest Act.

Accordingly, we affirm the appellate court as to its holding that plaintiff was entitled to an accounting for the payments of principal and interest on the purchase-money mortgage and as to its holding that First Charter was entitled to interest on its advancement at the rate of 5%. We reverse the appellate court’s holding that it did not have jurisdiction to review the correctness of the trial court’s decree of December 19, 1975, and we remand this cause to the Appellate Court for the First District for a consideration of that issue.

Affirmed in part and reversed in part and remanded, with directions.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50923.
    DEBRA HAUGHTON, Special Administrator, Appellant, v. JAMES HAUGHTON, Appellee.

      Opinion filed May 24, 1979.

    Rehearing denied September 28, 1979.

      George F. Archer and Mel Sloan, of Chicago, for appellant.
    Howard T. Savage and Samuel L. Patterson, of Chicago (Howard O. Edmonds, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On May 23, 1975, plaintiff, Hattie Ball, filed a two-count petition in the circuit court of Cook County seeking the registration and enforcement of certain foreign support orders. Count I, which was captioned “Registry of Foreign Support Order Under the Reciprocal Enforcement of Support Act” (Ill. Rev. Stat. 1975, ch. 68, par. 101 et seq.), sought the registration and enforcement of a 1958 New York child-support order directing defendant to pay $50 per month to the court for the children’s benefit. In count II, plaintiff sought to enroll and enforce, pursuant to the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1975, ch. 77, par. 88 et seq.), a 1950 California judgment which provided for monthly child-support payments by defendant of $60. The trial court granted defendant’s motion to dismiss count I, but denied the motion to dismiss count II, and subsequently entered judgment thereon in favor of plaintiff in the amount of $22,816.06. The appeHate court reversed (60 Ill. App. 3d 562), holding that both counts were barred by the five-year “catch-all limitation” in section 15 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 16). We allowed leave to appeal.

Twin daughters, Debra and Denene, were born to plaintiff out of wedlock on July 3, 1948. Thereafter, plaintiff, acting as guardian ad litem for her infant daughters, instituted a support action in the superior court of the State of California. On January 17, 1950, the California court entered a decree finding that defendant, James Haughton, was the father of the girls and ordering him to provide support for them in the amount of $60 per month “until the further order of this court or until said plaintiffs reach their legal majority.”

Shortly thereafter defendant relocated in New York and mailed a single $50 support payment to plaintiff. This was apparently the only payment made by defendant during the years 1950-1958. Pursuant to a petition filed by plaintiff in California, the domestic relations court of the city of New York entered an order for support on May 15, 1958, in accordance with the New York Uniform Support Law in the amount of $50 per month. Plaintiff testified that, in the following years, she received approximately $2,375 in child-support payments from defendant. The last payment was received on or about July 3, 1969, the date on which Debra and Denene reached their legal majority. On November 23, 1970, defendant .established residence in Chicago. Plaintiff commenced the present action for enforcement of the prior support orders on May 23, 1975. While this action was pending in the appellate court, plaintiff died and Debra was appointed special administrator of plaintiff’s estate for the purposes of prosecuting the cross-appeal and defending the appeal.

Plaintiff argues: (1) that application of the tolling provision in section 18 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 19) to residents, but not to nonresidents, is unconstitutional; (2) that application of the five-year “catch-all limitation” (Ill. Rev. Stat. 1975, ch. 83, par. 16) to an action brought in Illinois on a foreign judgment, while applying a 20-year statute of limitation (Ill. Rev. Stat. 1975, ch. 83, par. 24b) to an action on a domestic judgment impermissibly discriminates between foreign and domestic judgment holders and, therefore, is unconstitutional; and (3) that the trial court erred in computing the amount of plaintiff’s judgment by basing it, in part, on the New York award which reduced defendant’s support payments from $60 to $50 per month.

The tolling statute at issue in this case provides:

“If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited, after his coming into or return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is no part of the time limited for the commencement of the action. But the foregoing provisions of this section shall not apply to any case, when, at the time the cause of action accrued, neither the party against nor in favor of whom the same accrued were or are residents of this state. ***” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 83, par. 19.)

Assuming that the five-year limitation (Ill. Rev. Stat. 1975, ch. 83, par. 16) is applicable to an action brought under the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1977, ch. 40, par. 1201 et seq-.) to register a foreign judgment, the plaintiff’s cause of action clearly would be barred in the absence of an applicable tolling provision. Because plaintiff had a money judgment payable in periodic installments, the statute of limitations began to run on each installment as it became due. (Light v. Light (1957), 12 Ill. 2d 502, 506; Schuler v. Schuler (1904), 209 Ill. 522, 527.) Since the last support payment was due sometime in July of 1969, a five-year statute of limitations would have barred this action, which was not filed until May of 1975, unless the running of the statute was tolled during defendant’s absence from Illinois.

We conclude that the portion of the section 18 tolling provision (Ill. Rev. Stat. 1975, ch. 83, par. 19) which limits its application to Illinois residents is violative of the equal protection clauses of both the Federal (U.S. Const., amend. XIV) and State (Ill. Const. 1970, art. I, sec. 2) constitutions and, therefore, cannot stand. That provision creates an impermissible distinction based upon whether or not one of the parties to the action was an Illinois resident at the time the cause of action accrued. We can discern no legitimate State interest which is served by that classification nor any other rational basis for it, and none has been suggested by defendant. To be sustained, a classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Stanton v. Stanton (1975), 421 U.S. 7, 14, 43 L. Ed. 2d 688, 694, 95 S. Ct. 1373, 1377; F. S. Royster Guano Co. v. Virginia (1920), 253 U.S. 412, 415, 64 L. Ed. 989, 990-91, 40 S. Ct. 560, 561-62. See also Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 511; Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 311.

The United States Supreme Court frequently has invalidated State statutes which deny certain benefits to those unable to meet specified residency requirements. For example, in Shapiro v. Thompson (1968), 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322, the court held unconstitutional State statutory provisions which denied welfare benefits to those who had not resided in the State for at least a year. Similarly, in Dunn v. Blumstein (1972), 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995, the court struck down on equal protection grounds a State law imposing a durational residency requirement on voters. Most recently, in Memorial Hospital v. Maricopa County (1974), 415 U.S. 250, 39 L. Ed. 2d 306, 94 S. Ct. 1076, the Supreme Court invalidated an Arizona statute which conditioned eligibility for free medical care on satisfaction of a one-year residency requirement. In each instance the court found insufficient justification for the invidious discrimination resulting from a statutory classification based upon residency.

Likewise, we think the statutory provision in question here cannot withstand an equal protection attack. This is so regardless of the degree of scrutiny which we employ. Whether under a rational basis test or a compelling State interest test, the classification created by this tolling statute is constitutionally invalid. By its terms, the statute tolls the running of the applicable limitation period where the defendant is out of Illinois at the time a cause of action accrues. The statute of limitations begins to run only after the defendant enters this State, except in those instances where neither party was a resident when the cause of action accrued. If plaintiff had been an Illinois resident at the time this cause of action accrued, the tolling statute would have been applicable, and the statute of limitations on the foreign judgments would not have begun to run until November of 1970, when defendant established his residency in Illinois. Solely because of the fact that both parties were nonresidents at the time this cause of action accrued, the statute denies the tolling benefits accorded residents. In the absence of some rational basis for withholding those benefits because neither of the parties was an Illinois resident at the time the cause of action arose, that provision clearly contravenes the rationale of the cited cases. Moreover, if we were to uphold this statutory classification, deserving nonresident judgment holders would be denied relief in the Illinois courts simply because they failed to anticipate the judgment debtor’s future movement into this State prior to termination of the otherwise applicable statute of limitations.

It follows from our holding that neither count of plaintiff’s petition should have been dismissed for failure to comply with the applicable statute of limitations. Defendant first entered Illinois in November of 1970, and the statute of limitations had been tolled until that time. Consequently, plaintiff had until November of 1975 to file her petition under the five-year statute of limitations applied by the appellate court. Since that petition was filed on May 23, 1975, the five-year statute of limitations did not bar the action.

This conclusion is not inconsistent with the earlier decisions of this court in Light v. Light (1957), 12 Ill. 2d 502, and Davis v. Munie (1908), 235 Ill. 620. Neither of those cases presented the constitutional issues with which we are faced today. In Light, the defendant set up the five-year statute of limitations for actions on foreign judgments (Ill. Rev. Stat. 1957, ch. 83, par. 16) as a defense to an action brought by his ex-wife in Illinois to enforce a Missouri alimony and support decree which was entered nine years earlier. This court concluded that the five-year statute of limitations was not a bar to the action since the circuit court had only registered those unpaid installments of the Missouri decree which became due within the five-year period immediately preceding the filing of the application to register. Since the circuit court order was so limited, this court had no occasion to determine the constitutionality of the tolling statute.

In Davis, this court held that a suit on a foreign judgment was barred if not brought within five years from the time the judgment was rendered and that the section 18 tolling provision (Ill. Rev. Stat. 1975, ch. 83, par. 19) did not apply unless one of the parties was an Hlinois resident at the time the cause of action accrued. There is, however, no indication that the plaintiff challenged the constitutionality of the tolling statute or that this court considered the question. While Davis is precedent for the proposition that the “catch-all” five-year limitation statute applies, it is not relevant on the issue of the validity of the exception to the tolling provision.

Having concluded that the challenged portion of the section 18 tolling provision (Ill. Rev. Stat. 1975, ch. 83, par. 19) violates the equal protection clauses of the United States and Hlinois constitutions, we find it unnecessary to address the other constitutional issues raised. It is well settled that constitutional questions will not be decided unnecessarily. Lulay v. Peoria Journal-Star, Inc. (1966), 34 Ill. 2d 112, 116.

Plaintiff also urges that the method utilized by the trial court in computing the amount of the judgment was erroneous, a contention with which we agree. At trial, plaintiff introduced testimony by an actuary, which consisted of three alternative computations. The trial court based the $22,816.06 judgment on the third computation, which assumed a duty to pay $60 per month from January 15, 1950, through May 31, 1958, and $50 per month for the period of June 1, 1958, through July 3, 1969. Plaintiff contends that the trial court should have based the judgment on the actuary’s second computation, which assumed a duty to pay $60 per month for the entire period of January 15, 1950, through July 3, 1969, and which resulted in a total principal and interest due of $25,246.75.

The essence of plaintiff’s argument is that the $22,816.06 judgment was predicated upon recognition of the validity of the New York “modification” of the California decree, but that absent some showing of changed circumstances, the New York court had no authority to reduce the support payments from $60 to $50 per month. The opinion of the appellate court indicates:

“*** petitioner sought the registration and enforcement of the California decree in the State of New York. After examining the California petition, summons, and decree, the Domestic Relations Court of the City of New York held a hearing on the matter and, on May 15, 1958, ordered respondent to pay $50 per month as support to the court.” (60 Ill. App. 3d 562, 564.)

It is entirely clear, however, that the reference in the New York order is not to the 1950 California proceedings, but rather to the petition, filed on June 13, 1956, in California initiating proceedings under the uniform act. It does not appear to us that the New York order was intended to be a “modification” of the California decree, for there is in the New York order no reference to the original California decree and, in fact, there is in this record nothing to indicate that the New York court was even aware of the 1950 California support order. It would not have been possible under the then-existing Uniform Reciprocal Enforcement of Support Act (see, e.g., Ill. Rev. Stat. 1955, ch. 68, pars. 50 to 59, repealed August 28, 1969) to register in Illinois a support order from the courts of another State, and there is no indication that the situation differed in New York. While part four of the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1977, ch. 40, par. 1235 et seq.) now provides explicitly for “registration of foreign support orders,” there was no comparable provision in the prior act. In the absence of any indication to the contrary, we conclude the New York action, if valid, was independent of the California judgment and was not intended to modify it. Accordingly, the California judgment remained unimpaired, and the trial court should have computed its award under count II on the basis of $60 per month during the minority of the children for a total of $25,246.75. In view of this conclusion we need not consider the propriety of the trial court’s dismissal of count I.

Defendant also contends that the trial court erred in entering judgment for Hattie Ball, the mother of Debra and Denene, since the two daughters were the real parties in interest to the California support judgment. Defendant claims that only Debra and Denene are entitled to enforce the California support decree. When defendant raised this issue for the first time in the appellate court, both daughters petitioned that court pursuant to section 26 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 26) and Supreme Court Rule 366(a) (58 Ill. 2d R. 366(a)) to be added, ab initio, as additional parties petitioners, appellees and cross-appellants. Their verified petition recited that all that their mother had done had been with their consent and approval. An alternative motion was also filed to appoint Debra Haughton as special administrator pursuant to section 54(2) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 54(2)) following the death of her mother, Hattie Ball. The appellate court appointed Debra Haughton special administrator, but denied the motion to add Debra and Denene as additional parties.

In denying the motion to add the daughters as plaintiffs we believe the appellate court erred. Section 26 of the Civil Practice Act permits new parties to be added “by order of the court, at any stage of the cause, before or after judgment, as the ends of justice may require and on terms which the court may fix” (Ill. Rev. Stat. 1977, ch. 110, par. 26), while our Rule 366(a) authorizes a reviewing court to allow new parties to be added at any stage of review (58 Ill. 2d R. 366(a)). It is undisputed that Debra and Denene are the real parties in interest in this proceeding, and their motion to be added as parties plaintiff should have been allowed.

Finally, defendant presents several related arguments, all of which are predicated upon plaintiff’s uncertainty as to the precise amounts received by her from defendant. Plaintiff conceded at trial that she received $2,375 in child-support payments over the years. Defendant overlooks, however, the fact that payment or satisfaction is an affirmative defense (Ill. Rev. Stat. 1977, ch. 110, par. 43(4)) upon which he bore the burden of pleading and proof. Defendant cannot complain of plaintiff’s failure to prove that which it was his responsibility to establish.

The judgment of the appellate court is accordingly reversed. The motion of Debra and Denene Haughton to be added ab initio as parties plaintiff is allowed. It is further ordered and adjudged that Debra and Denene Haughton have and recover from defendant James Haughton the sum of $25,246.75 plus interest computed according to law.

Appellate court reversed; judgment here for plaintiffs.


author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE UNDERWOOD, MR. JUSTICE RYAN,

text:
    (No. 50581.
    VITO BALESTRI, Appellee, v. TERMINAL FREIGHT COOPERATIVE ASSOCIATION et al. (Highway & City Transportation, Inc., Appellant).

      Opinion filed June 1, 1979.

    Rehearing denied September 28, 1979.

      UNDERWOOD and RYAN, JJ., dissenting.
    Neil K. Quinn, of Pretzel, Stouffer, Nolan Sc Rooney, Chartered, of Chicago (Joseph B. Lederleitner and Robert Marc Chemers, of counsel), for appellant.
    John A. Doyle, Ltd., of Chicago (William J. Harte, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Vito Balestri, appealed from the judgment of the circuit court of Cook County entered in his favor on a jury verdict in the amount of $50,000, and against Highway Sc City Transportation, Inc. (hereafter defendant). The appellate court reversed and remanded for anew trial on the issue of damages only (57 Ill. App. 3d 669), and we allowed defendant’s petition for leave to appeal. The facts are stated in detail in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues.

Plaintiff, while employed as a city pickup and delivery driver, was directed to the premises of Terminal Freight Handling Company for the purpose of picking up cartoned refrigerators. Bernard Boos, defendant’s employee, was assigned to assist plaintiff in loading the refrigerators onto plaintiff’s truck. Plaintiff was injured when a two-by-four fell from one of the cartons and struck him on the elbow. During the occurrence the weight of the refrigerator shifted, resulting in plaintiff’s body being severely twisted.

In reversing the judgment and remanding for a new trial on the issue of damages only, the appellate court held that the circuit court had erred in refusing to give the following instruction:

“If you find that the defendant was negligent and that its negligence was a proximate cause of injury to and disability of the plaintiff, you should then find for the plaintiff and his right to recover damages for such injuries and disability is not barred or to be limited in any way by the fact, if you find it to be a fact, that the plaintiff’s injury and disability resulted from an aggravation of a pre-existing condition by the occurrence in question nor by reason of the fact, if you find it to be a fact, that the plaintiff because of a pre-existing physical condition was more susceptible to injury than other persons might have been.”

This instruction, which is not contained in Illinois Pattern Jury Instructions, Civil (2d ed. 1971) (IPI Civil), is based upon the opinion in Pozzie v. Mike Smith, Inc. (1975), 33 Ill. App. 3d 343. In Pozzie, in holding that the refusal of instructions tendered by the plaintiff was error, the appellate court said:

“Plaintiff tendered four jury instructions regarding the aggravation of a preexisting condition. The only instruction given to the jury was IPI — Civil 2d 30.03, a general instruction advising the jury to compensate plaintiff for among other things ‘the aggravation of any pre-existing condition.’ The other three instructions which were refused sought to further clarify the law. Plaintiff’s Instruction 14 informed the jury that plaintiff’s right to recover damages for his injuries and disabilities is not limited by the fact that plaintiff’s injuries and disabilities resulted from the aggravation of a preexisting condition. Instruction 15 advised the jury that damages should not be reduced because the injuries and resulting disability were due in part to a preexisting condition of plaintiff. Instruction 16 stated that it is not a defense to this action that plaintiff, because of a preexisting physical condition, was more susceptible to injury than other persons might have been. These three instructions are not in IPI. However, IPI instructions are not intended to be all inclusive. We believe that Plaintiff’s Instructions 14, 15 and 16 are each a correct statement of the law, and that the failure of the trial court to give at least one of them, with or without modification, left the jury without proper judicial guidance. In this case the singular submission of IPI — Civil 2d 30.03 inadequately advised the jury of its duty under the law.” 33 Ill. App. 3d 343, 347.

Supreme Court Rule 239 (58 Ill. 2d R. 239) provides that when “Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law.” There are situations where the IPI instruction is inadequate and an additional instruction is appropriate. (Department of Public Works & Buildings v. Association of Franciscan Fathers (1977), 69 Ill. 2d 308.) The instruction given by the court contained the language of IPI Civil No. 30.01, and enumerated, inter alia,

“1. The nature, extent and duration of the injury.” (IPI Civil No. 30.02.)
“2. The aggravation of any pre-existing ailment or condition.” (IPI Civil No. 30.03.)
“3. The disability resulting from the injury.” (IPI Civil No. 30.04.)

It was the defendants’ theory that because of a preexisting back condition plaintiff had suffered several periods of disability prior to the date of the injury in question.

Plaintiff’s testimony showed that he had suffered injuries on three prior occasions, that approximately two years before the injury a work-related injury resulted in his being off work for approximately four months; that approximately a year later another work-related injury to his left elbow and back resulted in his being absent from work for approximately six months; and that several months prior to the occurrence in question he had suffered injuries in an automobile accident which resulted in his being off work for two months. The medical testimony would support the conclusion that there may have been aggravation to the L — 5 S — 1 area of plaintiff’s back, and the testimony shows a preexisting condition known as spondylolisthesis.

It is well settled that a tortfeasor is liable for the injuries he causes, even though the injuries consist of the aggravation of a preexisting condition. (Chicago City Ry. Co. v. Saxby (1904), 213 Ill. 274.) We are of the opinion that the instruction given did not adequately instruct the jury on this issue. The third element of damages (IPI Civil No. 30.04) makes no reference to the injuries resulting from the aggravation of a preexisting ailment or condition and can be construed to limit damages to the disability resulting from those injuries included in element (1) (IPI Civil No. 30.02). Furthermore, it failed to instruct the jury that the damages assessed should not be reduced because the disability was due in part to a preexisting condition or for the reason that plaintiff, because of a preexisting condition, was more susceptible to injury than an individual would have been without the preexisting condition. Although it may be contended that the instruction as tendered is argumentative, the basis for its refusal was that it was not in IPI, and plaintiff had no opportunity to offer any modification. We agree with the appellate court that in summarily refusing to give the instruction the circuit court erred.

A new trial on the question of damages only is appropriately granted “where (1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability.” (Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 224.) The record shows the requisite elements, and the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

In 1954 the Illinois Judicial Conference conducted a study which disclosed that during the preceding 25-year period 38% of the reversals by the reviewing courts of Illinois resulted in whole or in part from errors in instructions. (Foreword to Illinois Pattern Jury Ins truetions, Civil, at xi (1961).) That shocking fact prompted the unamimous request in 1955 by that body to this court for assistance in solving the problem. This court responded by appointing a committee of distinguished judges, law professors and trial attorneys known as the Supreme Court Committee on Jury Instructions. The dedicated members of that committee worked at least two days per month, except summers, for five years to accomplish their objective: the drafting of conversational, understandable, unslanted and accurate jury instructions for use in civil cases. Their work product was filed with this court in late 1960 and published in 1961 as Illinois Pattern Jury Instructions — Civil, more commonly known as IPI Civil. It has received national acclaim. (IPI Civil at vi (1961) & 7 (Supp. 1965).) Our court responded to the publication of IPI by adopting Rule 25 — 1, the predecessor of Rule 239. Both Rule 25 — 1(a) and Rule 239(a) require the use of IPI instructions unless the trial judge determines they do not accurately state the law. If no IPI instruction exists on a subject upon which the judge believes the jury should be instructed, “the instruction given on that subject should be simple, brief, impartial, and free from argument.” (58 Ill. 2d R. 239(a).) Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563, and Seibert v. Grana (1968), 102 Ill. App. 2d 283, are typical of the reviewing court decisions implementing the emphasis placed upon the use of IPI instructions.

The trial judge considered adequate, and gave, the following IPI instruction:

“If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damage proved by the evidence to have resulted from the negligence of the defendant:
1. The nature, extent and duration of the injury.
2. The aggravation of any pre-existing ailment or condition.
3. The disability resulting from the injury.
4. The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
5. The reasonable expense of necessary medical care, treatment, and services received.
6. The value of earnings lost and the present cash value of the earnings reasonably certain to be lost in the future.
Whether any of these elements of damages has been proved by the evidence is for you to determine.” (IPI Civil Nos. 30.01, 30.02, 30.03, 30.04, 30.05, 30.06, 30.07.)

This instruction plainly tells the jury that they are “to fix the amount of money which will reasonably and fairly compensate him [plaintiff] for *** 2. The aggravation of any pre-existing ailment or condition.” In view of that mandate, the majority’s conclusion that the IPI instruction was inadequate because element (3) of damages “makes no reference to the injuries resulting from the aggravation of a preexisting ailment or condition and can be construed to limit damages to the disability resulting from those injuries included in element (1)” (76 Ill. 2d at 455-56) seems to me quite amazing.

The instruction offered by plaintiff, the refusal of which the majority now holds constituted reversible error, was as follows:

“If you find that the defendant was negligent and that its negligence was a proximate cause of injury to and disability of the plaintiff, you should then find for the plaintiff and his right to recover damages for such injuries and disability is not barred or to be limited in any way by the fact, if you find it to be a fact, that the plaintiff’s injury and disability resulted from an aggravation of a pre-existing condition by the occurrence in question nor by reason of the fact, if you find it to be a fact, that the plaintiff because of a pre-existing physical condition was more susceptible to injury than other persons might have been.”

That instruction is a composite of the three instructions held to have been improperly refused in Pozzie v. Mike Smith, Inc. (1975), 33 Ill. App. 3d 343. Pozzie is the sole authority cited by the majority for its holding here, and that case held only that one of the three refused instructions should have been given. Too, it is far from clear that the Pozzie court would have remanded on that ground alone. The opinion in that case holds a new trial is required because of an improper reference by defense counsel to an earlier workmen’s compensation recovery for a different injury, and the instructions were discussed in order to guide the trial judge on the retrial.

As I read the majority opinion here, it concedes the argumentative nature of plaintiff’s refused instruction, and the propriety of the court’s refusal to give it. It then, however, awards plaintiff a new trial because, apparently, the trial judge did not afford plaintiff an opportunity to “modify” the concededly improper instruction, despite the absence of any indication that plaintiff ever requested such opportunity.

Those of us who served as trial judges in pre-IPI days recall what a difficult task it was to sort out, from the mass of repetitive, slanted, verbose instructions frequently tendered by opposing counsel, those which might be thought to instruct the jury with some semblance of accuracy and fairness, or, sua sponte, to prepare others which would do so. That task was greatly simplified with the advent of IPI. The instruction tendered by plaintiff in this case, however, is reminiscent of the pre-IPI days when a prevalent vice consisted of the practice of some attorneys who would mold to their current desires, and incorporate in the form of jury instructions, statements taken out of context from opinions of this court or the appellate court. Those instructions would then be tendered to the trial judge who, with little or no time for research or reflection, decided whether to give or refuse them. As earlier noted, that procedure produced a substantial amount of error, which it was the intent of IPI and our Rule 239 to eliminate — an intent which, it seems to me, the majority opinion now frustrates.

Reference to the policies pursued by the committee during its labors is apposite here, for the trial judge, in refusing plaintiff’s composite instruction, indicated its content was more appropriately emphasized by plaintiff’s counsel in his argument to the jury. In the foreword to IPI Civil, second edition, the committee describes the criteria underlying those policies:

“First, the Committee has been opposed to negative instructions, that is, instructions which tell the jury to not do something.
Second, the Committee has not recommended instructions which single out a particular item of evidence for comment, even where there is judicial authority for the instruction.
Third, the Committee has been reluctant to recommend instructions that would be appropriate only in an exceptional case and are likely to be sources of error.
Fourth, and perhaps most important, the Committee has opposed over particularizing. It has preferred to rely upon one instruction which is general in nature and has avoided creating a number of instructions on a subject which is adequately covered by the single general instruction.
Underlying all these considerations has been a major policy. We have viewed the problem of communicating law to the jury as one best handled by a partnership between court and trial counsel rather than by the court alone. The Court will in understandable language fairly state the law, permitting counsel on each side to supply adversary emphasis, rather than try to neutralize partisan instructions, sounding first like plaintiff’s counsel and then in the next sentence like defense counsel. In brief, on many occasions when the Committee has rejected an instruction, it has felt not so much that the point ought not be told to the jury, but rather that it should be told to the jury by counsel rather than by the Court.” Foreword to IPI Civil at vi-vii (2d ed. 1971).

The court’s opinion does not even indicate the verdict to be inadequate, which, if it were, might be cause for concern as to the adequacy of the instructions. I agree that the verdict is not inadequate, although I would also agree that a somewhat higher verdict would not have been excessive in view of the conflicting testimony. But the matter of resolving contradictory testimony as to damages is a function for which we traditionally say juries are peculiarly well suited. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494; Lindroth v. Walgreen Co. (1950), 407 Ill. 121; Barbour v. Chicago Transit Authority (1976), 41 Ill. App. 3d 888, 894; Reed v. Knol (1972), 7 Ill. App. 3d 163, 166.) The jury here had before it a plaintiff with a congenitally weak back who had been involved in a number of industrial and nonindustrial accidents during preceding years, none of which were revealed by him to Dr. Scuderi or Dr. Sahgal; he complained of pain for which his own medical experts could find no objective support, nor did they find any objective cause for his limping as he did; and in Dr. Sahgal’s opinion plaintiff was “employable” and had “an excellent vocational potential.” The jurors had been instructed to “reasonably and fairly compensate” plaintiff for the “aggravation of any pre-existing ailment or condition,” and whether and to what extent that aggravation had occurred was for them to decide.

In my opinion the trial judge properly held the given IPI instruction was adequate. In any event, the additional instruction tendered by plaintiff was neither simple, impartial nor free from argument as Rule 239 requires, and it was properly refused. It is, in my judgment, neither necessary nor fair to reverse this trial judge for failing to modify and then give a refused instruction he was never requested to change. The court’s action in doing so seems to me a nullification of the significant benefits from IPI, and a substantial step backward to the undesirable practices of pre-IPI days.

I would reverse the judgment of the appellate court and affirm the judgment of the trial court.

MR. JUSTICE RYAN,

also dissenting:

I join in Mr. Justice Underwood’s dissent. However, having shared his frustrating experiences as a trial judge in pre-IPI days, I am compelled to separately voice my opposition to the majority’s rending of the very principle of pattern jury instructions.

The pattern instructions given in this case informed the jury in very simple, straight-forward, nonargumentative language that the plaintiff was entitled to recover as an element of damages the “aggravation of any pre-existing ailment or condition.” If, as the majority holds, the plaintiff is entitled to add to the instruction given another instruction which expands on this element of damages by stating that recovery “is not barred or to be limited in any way by the fact *** that the plaintiff’s injury and disability resulted from an aggravation of a pre-existing condition” then arguably a plaintiff would likewise be entitled to similarly expand on and more precisely tailor to his benefit instructions as to every element of damages. If this is permissible for the plaintiff, then I assume the defendant would likewise be entitled to an instruction that recovery is barred or limited if the jury finds that the injury did not result from an aggravation of a preexisting condition and to other instructions as to other elements of damages which would be more restrictive than the IPI instruction and which would naturally be tailored to benefit the defendant. The majority opinion, I fear, is regressive and retreats toward pre-IPI days.

The majority conjectures that the plaintiff had no opportunity to offer a modification of the defective instruction. There is no indication that the plaintiff requested a modfication of the tendered instruction. The burden of preparing and tendering jury instructions is primarily on the parties and not on the trial court. (People v. Grant (1978), 71 Ill. 2d 551, 557; 58 Ill. 2d R. 239; Ill. Rev. Stat. 1977, ch. 110, par. 67.) With certain exceptions, the trial court is under no obligation to give jury instructions not requested by counsel. (People v. Damen (1963), 28 Ill. 2d 464, 469; People v. Springs (1972), 51 Ill. 2d 418, 425.) In Sweeney v. Max A. R. Matthews & Co. (1970), 46 Ill. 2d 64, 69, this court stated: “The defendant was certainly entitled to have the jury properly instructed on this issue [citation], but just as clearly the trial court’s refusal to give incorrect instructions was not error.” In Sweeney in the appellate court (94 Ill. App. 2d 6) the opinion noted that the plaintiff’s objection was not to the form of the instruction but to the giving of any instruction on the subject. The court stated that it was the defendant’s obligation to tender a proper instruction on the applicable law and since he did not he could not complain that his instruction was refused. (94 Ill. App. 2d 6, 30.) In Kinka v. Harley-Davids on Motor Co. (1976), 36 Ill. App. 3d 752, the court stated that if the plaintiff faüed to meet her obligation to tender a proper instruction on the applicable law she could not complain that her instruction was refused. To the same effect see Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563.

Even if the plaintiff were entitled to an instruction on aggravation of a preexisting condition, in addition to the IPI instruction given, the instruction tendered clearly could not be given in the form tendered. If it would have been given and a verdict would have been returned in favor of the plaintiff, the defective instruction would have constituted serious grounds for reversal and the granting of a new trial to the defendant. I therefore do not think that we should order a reversal in this case based upon the trial court’s refusal to give a clearly erroneous plaintiff’s instruction.


text:
    (No. 50837.
    STEWART WARNER, DATAFAX CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Loretta H. Kopczynski, Appellee).

      Opinion filed June 1, 1979.

    Rehearing denied September 28, 1979.

    Klohr, Braun, Lynch & Smith, Ltd., of Chicago (Mark A. Braun, of counsel), for appellant.
    Arnold & Kadjan, of Chicago (Michael Lee Tinaglia, of counsel), for appellee.
    Loretta H. Kopczynski, pro se.

   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that on January 23, 1973, while employed by respondent, Stewart Warner, Datafax Corporation, Frank J. Kopczynski sustained accidental injuries arising out of and in the course of his employment which caused his death, and pursuant to section 7 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.7) awarded compensation to his widow, petitioner Loretta H. Kopczynski. On review, without hearing additional testimony, the Industrial Commission found that petitioner had failed to prove that the decedent sustained accidental injuries arising out of and in the course of his employment and set aside the decision of the arbitrator. On certiorari the circuit court of Cook County reversed the decision of the Commission and ordered that the decision of the arbitrator be reinstated. Respondent appealed. Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)).

On January 23, 1973, while at work, Frank Kopczynski died of a myocardial infarction. Kopczynski was' 56 years old and for 14 years prior to his death had suffered from a diabetic condition. He was employed as a foreman of inspectors, which involved him in settling disputes between workers and foremen regarding the acceptability of piece parts manufactured by respondent. Kopczynski was paid a weekly salary plus time and a half for overtime.

Petitioner testified that on Friday evening, January 19, 1973, when Kopczynski returned from work, he was visibly upset. Over objection she stated that her husband told her that he had had a conversation with his boss, Joseph Kubik, that they had discussed his salary and that Kubik had told the decedent that he would be placed on a semimonthly rather than a weekly payroll. At that time, semimonthly employees were not paid overtime. That evening the deceased smoked quite a lot and drank large quantities of coffee. He had very little appetite and talked very little at the table. She testified that he was edgy throughout the entire evening and had difficulty sleeping that night.

She testified that on Saturday and Sunday her husband seemed very preoccupied and did not have much of an appetite. On January 22, the following Monday, when the deceased returned home he was again very upset because he had had a second conversation with Kubik which confirmed the fact that he would go on a semimonthly payroll by the end of January. Petitioner stated that the decedent smoked “an awful lot” that evening and drank 8 to 10 cups of coffee. On January 23, 1973,- she prepared his breakfast, but he did not eat anything before leaving for work.

Dr. Nathaniel Greenberg, a physician with a specialty in internal medicine, in response to a hypothetical question based upon the events preceding the decedent’s death, expressed the opinion that the emotional distress during the four days prior to the decedent’s death caused the myocardial infarction which proved fatal. He stated that the aggravation to the heart was caused by the following four factors: (1) the decedent was 56 years old; (2) his weight was in excess of 200 pounds; (3) he had a condition known as diabetes mellitus; and (4) he was subjected to four days of emotional distress. On cross-examination Dr. Greenberg testified that the emotional stress to which he referred concerned the decedent’s apprehension about the loss of earnings.

Joseph Kubik testified that he was a quality control man and was the deceased’s immediate superior. Kubik had no recollection of a conversation with Kopczynski concerning his salary at any time within two or three days of Kopczynski’s death, or at any time within three months of his death. He stated that he may have had a general discussion with a group of foremen concerning a change from a weekly to a semimonthly payroll, but said that he placed no pressure on Kopczynski regarding the payroll change. He testified that he considered Kopczynski a friend and that at no time did he argue with him.

During Kubik’s testimony the following ensued:

“THE ARBITRATOR: Is there much stress and strain being a foreman of thirteen or fourteen inspectors?
THE WITNESS: We have eleven, twelve individual foremen or laboratory supervisors, scale him 1 to 12, I would think his particular job was somewhere, 5 or 6.
Q. As far as stress and strain is concerned?
A. Yes, moderate.”

Edward J. Walsh, called by respondent, testified that for some time prior to his death, Kopczynski had worked 10 hours a day, five days each week, and eight hours on Saturday. He knew that the deceased had had a discussion with his superior concerning the manner in which he was to be paid. In response to the arbitrator’s inquiry as to whether there was any pressure connected with the decedent’s work, he replied, “Well I guess there was a great deal of pressure but most of these, if there was a problem it was resolved.”

There was testimony from other employees of respondent that on the date of his death Kopczynski was in a generally good mood and showed no outward manifestations of being upset or distressed. Edward Walsh testified that he had known Kopczynski for 20 to 25 years and he had not noticed anything unusual about him either during the three or four days prior to, or on the date of, his death.

Respondent contends that the evidence was contradictory both as to the alleged confrontation with respect to the change in the manner of the deceased’s compensation and whether he suffered any emotional upset. It contends further that there is no competent evidence of any connection between the occurrences at the deceased’s place of employment and his unusual conduct at home. Citing numerous authorities it argues that the decision of the Commission was not against the manifest weight of the evidence and the circuit court erred in reversing it.

Petitioner contends that the decision of the Industrial Commission was against the manifest weight of the evidence and that the circuit court correctly reversed the decision and reinstated the arbitrator’s award.

This court has repeatedly held that the question whether there is a causal relationship between the employment and the injury is for the Industrial Commission; that the Commission is entitled to draw reasonable inferences from the evidence and that this court will not disregard them merely because other inferences might have been drawn. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10.) The decision of the Commission was not against the manifest weight of the evidence, and in holding that it was, the circuit court erred.

For the reason stated the judgment of the circuit court of Cook County is reversed and the decision of the Industrial Commission is reinstated.

Judgment reversed.


text:
    (No. 51239.
    THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 150 et al., Appellees, v. THE CITY OF PEORIA, Appellant.

      Opinion filed June 8, 1979.

    Rehearing denied September 28, 1979.

      David L. Thomas and Brian M. Nemenoff, of Peoria, for appellant.
    Wm. McD. Frederick, Julian E. Cannell and Phillip B. Lenzini, of Peoria (Kavanagh, Scully, Sudow, White & Frederick, of counsel), for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This is an appeal to this court from the circuit court of Peoria County under our Rule 302(b) (58 Ill. 2d R. 302(b)). The circuit court entered a declaratory judgment holding that certain tax ordinances of the city of Peoria were not enforceable against the plaintiffs, the board of education of School District No. 150, Peoria, and the Pleasure Driveway and Park District of Peoria.

On June 13, 1978, the city of Peoria, a home rule unit, adopted “An Ordinance Amending Appendix J of the Peoria City Code,” which related to taxes upon the .witnessing or participating in an amusement. The amendment imposed a tax of 2% on all fees charged. On the same day, the city also adopted “An Ordinance Amending Appendix J, Article II,” of the Peoria City Code, which related to a tax upon the privilege of purchasing food or alcoholic beverages served at a restaurant or tavern. This amendment imposed a tax of 2% upon the privilege of purchasing food or alcohol. Each ordinance provided that the ultimate incidence of and liability for the payment of the tax should be upon the consumer.

Each ordinance also provided that “[i]t shall be the duty of the owner, manager or operator” of the facility “to act as trustee for and on account of the city, and to secure said tax from the consumer” and “pay over to the city comptroller said tax under procedures prescribed ***.” One ordinance authorizes the comptroller to enter the premises of the owner “for inspection and examination of books and records” and provides that it shall be unlawful for any person to prevent, hinder or interefere with the comptroller in the discharge of his duties. The ordinance states that “[i]t shall be the duty of every owner to keep accurate and complete books and records to which the comptroller *** shall at all times have full access, which records shall include a daily sheet showing: (1) The number of admission fees charged within the twenty-four hour period, and (2) The actual amusement tax receipts collected for the date in question.”

The ordinance then provides that the owner “shall file tax returns showing tax receipts received on forms prescribed by the comptroller. The returns shall be due on or before the 30th day of each calendar month succeeding the end of the monthly filing period.” The ordinance provides for the filing periods and requires the owner to pay to the comptroller all taxes due for the period to which the tax return applies. It further provides: “If for any reason any tax is not paid when due, a penalty at the rate of one (1) percent per thirty-day period or portion thereof *** shall be added and collected.” The mayor is given the authority, after a hearing, to suspend or revoke all city licenses of any owner who has wilfully avoided payment of the tax, and fines may be imposed for not less than $200 nor more than $300 for the first offense on “[a] ny person found guilty of violating, disobeying, omitting, neglecting, or refusing to comply with *** any of the provisions” of the ordinance. Repeated offenses are punishable by incarceration in the county jail for a term not to exceed six months.

Article VII, section 6(a), of the Constitution of 1970 provides that a home rule unit may exercise “any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” This case does not challenge the general authority of the city of Peoria as a home rule unit to enact these taxing ordinances. The contention in this case is that the taxes cannot be made applicable to the two public bodies that are plaintiffs in this case, the school district and the park district.

Certain classes of property have been exempt from taxation by statute in this State. School district property and park district property are among those classes included. (Ill. Rev. Stat. 1977, ch. 120, pars. 500.1, 500.18.) Although in some States a presumption exists that the property of certain public bodies is exempt from taxation, this State has not applied such a presumption. In fact, our courts have held that all property is subject to taxation unless some law specifically exempts it, and the statutes are to be construed strictly in favor of the taxing body and against exemptions. (People v. Deep Rock Oil Corp. (1931), 343 Ill. 388, 400; City of Mattoon v. Graham (1944), 386 Ill. 180, 184-85. Compare City of Idaho Falls v. Pfost (1933), 53 Idaho 247, 250-60, 23 P.2d 245, 246-49.) The strict construction rule is true regardless of whether a private or public entity claims an exemption. The exemptions granted to school districts and to park districts are exemptions from property taxation.

However, in this case the taxes that are imposed by the ordinances are not taxes on property; rather, they are excise taxes and “are distinguished from property taxes by one being a tax directly upon the property itself, and the other as a charge for a privilege arising from the use of the property ***.” (Village of Lombard v. Illinois Bell Telephone Co. (1950), 405 Ill. 209, 213-14.) There are certain exemptions from nonproperty taxes that would apply to schools and to park districts. For example, the Retailers’ Occupation Tax Act exempts from gross receipts of the retailer sales made to governmental bodies. Ill. Rev. Stat. 1977, ch. 120, par. 441.

The Use Tax Act also exempts governmental bodies from paying the use tax on personal property purchased at retail. (Ill. Rev. Stat. 1977, ch. 120, par. 439.3.) However, it would be contrary to this State’s rule of strict construction concerning tax exemptions to extend these statutory exemptions to the taxes imposed by the ordinances under consideration. The taxes here involved are not levied on the property of these districts or on a retail sale to or a use by either district. These taxes do not therefore fall within the scope of a specific tax exemption and are not invalid as applied to the activities sponsored by the school and by the park district.

Each of these ordinances specifically provides that the ultimate incidence of the tax is imposed on the participant, observer or purchaser, not upon the party collecting the funds. The amount due under the tax need simply be added to the price charged. Similarly, in Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, this court noted that the ultimate incidence of a parking lot tax fell upon the person occupying the space, though the money was remitted to the city by the lot owner. In S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, it was held that the ordinance clearly imposed the cigarette tax on the ultimate purchaser of the cigarettes, and in Mulligan v. Dunne (1975), 61 Ill. 2d 544, it was explained that even though the Cook County liquor tax would be difficult to pass on, it was “hardly impossible” to make the consumer pay the tax. (See also Pennwalt Corp. v. Metropolitan Sanitary District (N.D. Ill. 1973), 368 F. Supp. 972, 978; Michael & Norton, Home Rule in Illinois: A Functional Analysis, 1978 U. Ill. L.F. 559, 591.) The amusement tax is imposed on the consumer as an addition to the admission charges. The food tax is imposed on the consumer as an addition to the charge for his meal or drink. These city taxes fall on the consumer, and cannot be considered as taxes imposed on another governmental unit.

Having determined that the primary obligation of these taxes falls on the consumer and that the ordinances are not per se invalid when applied to activities sponsored by other units of local government, we must consider a subsidiary question, though one that is controlling insofar as the school district is concerned. Do the requirements of the ordinances pertaining to the collection of the taxes, the keeping of records, the examination of books and records by the comptroller, the imposition and conferring of trustee duties and powers in the collection and remittance of the tax, the imposition of fines and penalties and other duties, powers, and responsibilities constitute impermissible regulation of the school district and the park district by the city of Peoria?

This court has stated that under section 1 of article VIII of the Constitution of 1870, the people of this State have given to the legislature “all power over the public schools and school system,” subject only to the two limitations of section 1 of article VIII; the schools must be free and they must be open to all without discrimination. (People v. Deatherage (1948), 401 Ill. 25, 53.) In Spaulding v. Illinois Community College Board (1976), 64 Ill. 2d 449, this court, after citing People v. Deatherage, stated that, under section 1 of article X of the 1970 Constitution, the legislature possesses similar authority concerning school matters and spoke of the pervasive interests of the State in education. Again, in Cronin v. Lindberg (1976), 66 Ill. 2d 47, this court reaffirmed the supremacy of the legislature with regard to schools and school districts under the 1970 Constitution. Pursuant to the constitutional mandate of the 1870 Constitution and of the 1970 Constitution, the legislature has enacted a comprehensive scheme for the creation, management and operation of Illinois schools. The powers, duties and obligations of school boards are described in detail by the statutes. (Ill. Rev. Stat. 1977, ch. 122, pars. 10 — 1 through 10 — 23.9.) Thus the legislature, pursuant to the constitutional mandate, exercises plenary power over the Illinois school system. We need not decide whether health and safety ordinances of home rule cities are enforceable against school districts. See generally County of Cook v. City of Chicago (1924), 311 Ill. 234, 242-45; City of Chicago v. Board of Education (1927), 246 Ill. App. 405, 410-11; D. Mandelker & D. Netsch, State and Local Government in a Federal System 418-23 (1977), 10 Ill. L. Sc Prac. Cities, Villages and Other Municipalities sec. 1114 (1955); 13 Am. Jur. 2d Buildings sec. 7 (1964); 68 Am. Jur. 2d Schools sec. 70 (1973).

In Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, a law library surcharge imposed by Cook County under its home rule power on the first pleading or other appearance of parties to a civil action was invalidated. After an examination of the constitutional and legislative scheme for a statewide court system, it was noted that “[a]rticle VI [the judicial article] of the 1970 Constitution does not contemplate nor does it authorize the exercise of any control over or permit the imposition of a burden on the judicial system by any local entity.” Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 542.

As in Ampersand, the Peoria tax ordinances impose duties upon the board of education of the Peoria school district that are not authorized. The provision concerning the keeping of records, the examination of the books, the collection of the tax, the periodic payment of the tax to the city, the filing of periodic reports with the city, the holding of the taxes collected as a trustee for the city and the various other requirements of the ordinances impose upon the board of education duties over and above those that have been imposed upon the board by the legislature. They also confer on the school district powers that they have not been given by the statute, such as the power to collect taxes on behalf of the city of Peoria and to hold those taxes as trustee. As applied to school district No. 150, the two ordinances in question constitute an unauthorized regulation of the school district contrary to section 1 of article X of the Constitution of 1970.

The General Assembly has long provided for the creation of park districts by way of special legislation. In 1893 legislation was enacted for the first time permitting the formation of park districts under a general law. In 1947 the General Assembly enacted a bill codifying the various laws pertaining to park districts of less than 500,000 inhabitants, the short title of which was “The General Park District Code.” That title was changed in 1951 to “The Park District Code.” (Hoff, History of the Park District Code, Ill. Ann. Stat., ch. 105, at xiii (Smith-Hurd 1952).) Although the General Assembly, by this act, codified certain prior laws pertaining to park districts, it did not thereby manifest an intent to assert an exclusive statewide dominion over parks or park districts. In fact, in the Illinois Municiple Code of 1961 local municipalities are likewise authorized to establish and maintain parks. (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 98—1 et seq.-, par. 11 — 99—1 et seq.-, par. 11 — 100—1 et seq.) We cannot therefore say that there exists a pervasive statewide interest in parks and park districts which prohibits a home rule unit from legislating in such a manner as to impose incidental obligations and burdens upon park districts. (See Mulligan v. Dunne (1975), 61 Ill. 2d 544; Town of Cicero v. Fox Valley Trotting Club (1976), 65 Ill. 2d 10.) We therefore hold that the ordinances in question do not constitute an unauthorized regulation of the plaintiff park district.

The judgment of the circuit court of Peoria County is affirmed as to the plaintiff school district. The judgment of the circuit court of Peoria County is reversed as to the plaintiff park district.

Affirmed in part and reversed in part.