text:
    (No. 54641.
    FAYE LURIE et al., Appellees and Cross-Appellants, v. CANADIAN JAVELIN LIMITED et al., Appellants and Cross-Appellees.

      Opinion filed December 17, 1982.

      SIMON, J., took no part.
    Roger J. McFadden and Margaret Maxwell (Hubachek & Kelly, Ltd., of Chicago, of counsel), for appellants and cross-appellees.
    William J. Harte, of Chicago, for appellees and cross-appellants.
   JUSTICE WARD

delivered the opinion of the court:

This appeal involves the propriety of an award of $100,000 in attorney fees in a class action suit in the circuit court of Cook County. There was a stipulated settlement, under which the class of 12 members recovered approximately $3,000. Under the stipulation the defendants agreed to pay reasonable attorney fees in addition to the damages recovered by the class. The appellate court affirmed. (92 Ill. App. 3d 15.) The defendants were given leave to appeal and contend that the award is excessive in light of the size of the damages recovered by the class. The plaintiffs cross-appealed, contending that the attorney fees should have been greater to reflect the substantial amount of time expended and the involved character of the litigation.

Six volumes of the seven-volume record were lost between the time of the filing of the appellate court’s opinion and the oral argument before us. Consideration of the issues had to be deferred until the record could be reconstructed by the parties. The clerk of this court has been provided with a condensed two-volume record by the parties, which contains the materials they consider to be necessary for a determination of the questions presented.

On December 5, 1973, the plaintiffs, Faye and H. Haskell Lurie, on behalf of themselves and all others similarly situated, filed a four-count class action complaint in the circuit court of Cook County (hereafter, Lurie I) against the defendants, Canadian Javelin Limited (Javelin), William M. Wismer, and John C. Doyle. Wismer was the president and a director of Javelin. Doyle was the founder, a director, the chief executive officer, and the owner of a controlling interest in Javelin’s stock. The complaint alleged common law fraud, violation of section 12 of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1973, ch. 121½, par. 137.12), and violations of sections 5 and 17(a) of the Securities Act of 1933 (15 U.S.C. secs. 77e, 77q(a) (1970)). The Luries purported to represent all purchasers of Javelin stock in the period from November 1, 1969, to December 5, 1973, the date of the filing of the complaint.

On the same day, the plaintiffs filed another suit (Lurie II) against the defendants in the United States District Court for the Northern District of Illinois, alleging violations of the Securities Exchange Act of 1934 (15 U.S.C. sec. 78a et seq. (1970)), under which Federal courts have exclusive jurisdiction (15 U.S.C. sec. 78aa (1970)). The complaint in Lurie II was based on the same conduct of the defendants as was alleged in the Luries’ State court action. The district court stayed proceedings in Lurie II until the State court proceeding would be concluded.

On December 3, 1973, two days before the filing of the Luries’ suits, a similar class action against the defendants, Bonime v. Doyle (S.D.N.Y. 1976), 416 F. Supp. 1372, was filed in the United States District Court for the Southern District of New York. The Bonime plaintiffs claimed representation of the class of Javelin shareholders who purchased shares during the period between April 30, 1969, and October 25, 1973. (By order of the Securities and Exchange Commission (SEC), trading in Javelin stock in domestic markets was halted on October 25, 1973.)

In October of 1973, prior to the filing of the suits we have described above, the SEC brought a suit against Javelin, Wismer, and Doyle. (Securities Exchange Com. v. Canadian Javelin Ltd. (S.D.N.Y. July 17, 1974) [1974-1975] Fed. Sec. L. Rep. (CCH) par. 94,720.) The SEC’s complaint made allegations similar to those in the subsequent Bonime and Lurie suits and prayed for a permanent injunction and other relief. On March 29, May 29, and July 17, 1974, three separate consent decrees were entered in the SEC action, which enjoined the defendants from engaging in any of the activities complained of and from participating in any future activities which would operate as a fraud on any purchaser of Javelin securities.

It appears that Doyle is no stranger to legal proceedings. According to the record, Doyle was convicted of Federal securities violations in Connecticut in 1965. When his conviction was affirmed (United States v. Doyle (2d Cir. 1965), 348 F.2d 715), he fled to Canada, where he successfully resisted extradition.

In 1976, Canadian authorities brought charges of fraud against Doyle and four others involving common stock of Javelin. It is said that upon the filing of these charges, Doyle fled to and presently resides in Panama. The plaintiffs’ brief states that all of the assets of Canadian Javelin have been removed from the United States.

The Bonime action proceeded more expeditiously than Lurie I, and in April of 1974 the Bonime plaintiffs moved for class certification. On February 7, 1975, the Bonime class was certified. It comprised all purchasers, with exceptions not relevant here, of Javelin shares between April 30, 1969, and October 24, 1973. When the parties in Bonime submitted a stipulation of settlement on July 9, 1975, the Luries’ attorney, who also represented three of the class members in Bonime, unsuccessfully objected to the proposed settlement. The settlement, which was approved on July 26, 1976, provided that the members of the Bonime class would receive $1,350,000, less attorney fees of $260,000 and costs. The Bonime action was later dismissed on the merits with prejudice.

Meanwhile, the Lurie I plaintiffs had moved for class certification. Extensive briefs were filed by both parties on the question. In July 1976 the court granted the plaintiffs’ class-certification motion and issued a 31-page memorandum opinion. The class was to include all those who acquired Javelin common stock in the period from November 1, 1969, to December 19, 1974. When the Bonime settlement was approved in New York IV2 weeks later, the Lurie I class had to be reduced to include only those who were not included within the definition of the Bonime class or who opted out or were rejected, without a requested hearing, from being included within the Bonime class.

On October 12, 1976, the parties in Lurie I submitted to the court a stipulation of settlement under which each member of the Lurie I class was to receive the same proportional recovery of their loss as that which was received by members of the Bonime class. Therefore, the size of the class recovery could not be determined until the size of the Lurie I class and the proportional recovery by the Bonime class were calculated. The defendants additionally agreed in the stipulation to pay attorney fees to the plaintiffs’ counsel and certain litigation expenses. The stipulation also provided: “The amount of attorneys’ fees to be awarded plaintiffs’ counsel in this action shall not, in any manner, be based, directly or indirectly, upon the result obtained or benefit conferred upon the Bonime Class in the Bonime case.” If the parties were not able to agree on the amount of attorney fees, the stipulation provided that either party could petition the court to set the fees. The court’s decision as to the amount of fees to be paid to the plaintiffs’ counsel was not to be reversed or modified unless the court’s decision was found to constitute an abuse of discretion. The stipulation provided for the dismissal of both the Lurie I and Lurie II actions.

Over 2,500 claims by shareholders of Javelin were filed, but most of these claimants were excluded because they were within the Bonime class. Of the remaining claims the trustee appointed by the trial court determined that only 12 claimants were within the Lurie I class. The service of the trustee continued to 1979. The court ordered payment of $48,800 to the trustee for his services. The trustee was appointed by the court, and remuneration for his services was, of course, not to be on a contingent basis.

As the parties were unable to agree on the amount of fees to be paid to the plaintiffs’ attorneys, that question was submitted to the trial court. The plaintiffs’ counsel asked for fees totaling $321,454. Compensation for 2,408 hours of attorneys’ time at $125 per hour and 681 hours of law clerks’ time at $30 per hour was requested. After briefs had been filed and considered, the court calculated a lodestar figure for attorney fees of $138,750 by multiplying the number of hours spent by the plaintiffs’ counsel in the litigation by $75, the hourly rate fixed by the court. The court, however, announced that an award for the lodestar figure as calculated would be incongruous considering the amount of the recovery by the class, and it made a fee award of $100,000. The court later denied the defendants’ motion to reduce and the plaintiffs’ motion to increase the award. On October 29, 1979, the court entered an order allowing the plaintiffs’ counsel interest on the award at the annual rate of 8% nunc pro tunc as of December 1, 1978, the date of the award of attorney fees.

The fee award in Lurie I did not cover services by the plaintiffs’ attorney in Lurie II or in Bonime. The award was solely for services in Lurie I. The plaintiffs’ attorney requested reimbursement for expenses in the amount of $13,626.72, and on October 3, 1978, the court ordered reimbursement in the amount of $10,600. On October 27, 1978, the trial court ordered interim attorneys’ fees in the amount of $10,000 to be paid to the plaintiffs’ attorney. The amounts for reimbursement and for interim fees were paid by the defendants in November 1978. The trial court’s order of December 1, 1978, ordered the payment of the balance of the fee award due the plaintiffs’ attorney, that is, $90,000.

We would note that motions the defendants made to dismiss or, in the alternative, to stay the proceeding in Lurie I were denied by the trial court. It is stated by the plaintiffs’ attorneys that as of the time of this appeal the members of the class had not been paid the damages agreed upon in the settlement stipulation.

The appellate court, on appeals by the defendants and the plaintiffs on the amount of fees, held that the lodestar figure should be increased by crediting time for the plaintiffs’ attorneys’ law clerks at an hourly rate of $30 but, as has been stated, considering the size of the recovery by the class, the court affirmed the award of fees in the amount of $100,000. (92 Ill. App. 3d 15.) We granted the defendants’ petition for leave to appeal. 73 Ill. 2d R. 315.

This court’s decisions in Flynn v. Kucharski (1974), 59 Ill. 2d 61, Leader v. Cullerton (1976), 62 Ill. 2d 483, and Fiorito v. Jones (1978), 72 Ill. 2d 73, illustrate that in this State attorney fees in class action cases typically are to be determined by use of a “lodestar computation” method. As the appellate court noted, however, this is not the typical class action case where attorney fees are to be paid from the class fund, thereby reducing each class member’s proportional share of the recovery. Here, in the settlement stipulation the defendants agreed to pay reasonable attorney fees in addition to the agreed-upon class-recovery amount. That the defendants agreed in the absence of a class fund to pay reasonable attorney fees does not mean, however, that the size and character of the benefit to the class through the class action suit can be ignored. The benefit to the class, whether monetary or nonmonetary or both, is of major importance in determining the amount of attorney fees to be awarded. In In re Clark Oil & Refining Corp. (E.D. Wis. 1976), 422 F. Supp. 503, 511, the court said: “[T]he beneficial result achieved, is to the Court’s mind the most important area to be evaluated in considering the question of reasonable attorneys’ fees in this matter. In taking this position, the Court echoes the view of Judge Decker who, in speaking of the benefits conferred upon class members, stated: ‘There is no better test than this of the efficacy of the services rendered.’ State of Illinois v. Harper & Row Publishers, Inc., 55 F.R.D. 221, 224 (N.D. Ill. 1972).” And in In re King Resources Co. (D. Colo. 1976), 420 F. Supp. 610, 630, the court said:

“In awarding attorney fees in class actions the courts have cited ‘the value of the settlement,’ Derdiarian v. Futterman Corp., 254 F. Supp. 617, 620 (S.D.N.Y. 1966); ‘the amount recovered,’ Trans World Airlines, Inc. v. Hughes, 312 F. Supp. 478, 480 (S.D.N.Y. 1970) and Perlman v. Feldmann, 160 F. Supp. 310, 311 (D. Conn. 1958); ‘the results achieved’ for the class, Philadelphia Elec. Co. v. Anaconda Amer. Brass Co., 47 F.R.D. 557, 559 (E.D. Pa. 1969); ‘[t]he result of the case, because that determines the real benefit to the client,’ Rogers v. Hill, 34 F. Supp. 358, 363 (S.D.N.Y. 1940).”

Cf. Bonner v. Coughlin (7th Cir. 1981), 657 F.2d 931.

Too, it should be recognized that the lodestar-computation method is hardly suited to a case in which a large amount of time has been spent for a disproportionately modest benefit for the class. See Mowrey, Attorney Fees in Securities Class Action and Derivative Suits, 3 J. Corp. L. 267, 342 (1978).

A court of review should not vacate an award of attorney fees without a showing of an abuse of discretion by the trial court in making the award. (Illinois v. Sangamo Construction Co. (7th Cir. 1981), 657 F.2d 855; see also Leader v. Cullerton (1976), 62 Ill. 2d 483.) Although an award of attorney fees in excess of the damages awarded or agreed upon is not necessarily precluded (Morning Pio neer, Inc. v. Bismarck Tribune Co. (8th Cir. 1974), 493 F.2d 383; see also Perez v. University of Puerto Rico (1st Cir. 1979), 600 F.2d 1, 2 n.2), we consider that an award of $100,000 here was inappropriate and an abuse of discretion.

The appellate court correctly observed that the “benefit to the class *** was small.” (92 Ill. App. 3d 15, 20.) The class itself was small—12 persons. The amount agreed upon to be recovered by the 12 members of the class represented only approximately 16V2% of their claimed losses. The award of fees incongruously was 33 times greater than the amount to be recovered by the class. The non-monetary benefits to the class were not significant. The consented-to injunction represented only a formal benefit in light of the consent decrees against the defendants that had been secured earlier by the SEC. There was no admission of liability by the defendants through Lurie I. The stipulation of settlement specified that it was not to be considered an acknowledgment of liability. Nor did the Lurie I litigation have precedential value, which may be advantageously considered in appraising the value of legal services and the setting of fees. (See Sprogis v. United Airlines, Inc. (7th Cir. 1975), 517 F.2d 387.) Lurie I and its result were simply a parallel to Bonime v. Doyle. That the two actions were filed almost simultaneously may have been entirely coincidental. The record does not show whether the plaintiffs’ attorney had foreknowledge of the planning and filing of Bonime, nor does it show whether the attorneys in Bonime were aware of the planning and filing of the Lurie class actions.

The primary purpose of the litigation was, of course, to recover substantial monetary damages for shareholders of Javelin. The success of Lurie I in this regard was obviously extremely limited. This does not reflect adversely on the efforts of plaintiffs’ counsel, for the trial court spoke in highly laudatory terms of his professional abilities and industry. The hours spent by the plaintiffs’ attorney and the rates of compensation set by the circuit and appellate courts are not disputed. We have noted earlier that an award of attorney fees in excess of the recovery by the class members may be defensible, but under all of the circumstances here the agreed-upon recovery of $3,000 for the class cannot justify attorney fees of $100,000. The awarding of 33 times the amount of the award to the members of the class must be regarded as an abuse of discretion.

The absence of the full record makes it advisable that the cause be remanded for the taking of further evidence, if necessary, or for a further reconstruction of the record.

For the reasons given, the award of attorney fees is vacated and the cause is remanded to the circuit court of Cook County for reconsideration of the amount to be awarded as attorney fees.

Judgment vacated; cause remanded, with directions.

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


source: Caselaw Access Project

author: JUSTICE SIMON JUSTICE GOLDENHERSH,

license: Public Domain

text:
    (No. 54753.
    ILLINOIS BELL TELEPHONE COMPANY, Appellee, v. ROBERT H. ALLPHIN, Director of Revenue, et al., Appellants.

      Opinion filed December 17, 1982.

      CLARK, J., took no part.
    GOLDENHERSH, J., specially concurring.
    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Dore & Clark, Ltd., Special Assistant Attorneys General, of Chicago (Cornelius F. Dore, William G. Clark, Jr., and llene M. Davidson, of counsel), for appellant.
    James W. Kissel, Henry L. Mason III, and David W. Carpenter, of Sidley & Austin, of Chicago, and James R. Bryant, Jr. (Howard J. Trienens, Robert D. Allen, and Thomas P. Hester, of counsel), for appellee.
    Robert A. Helman, Stephen J. Mattson, and Martin G. Rosenstein (Mayer, Brown & Platt, of Chicago, of counsel), for amicus curiae the Illinois Telephone Association.
   JUSTICE SIMON

delivered the opinion of the court:

By this action filed in 1973 in the circuit court of Cook County plaintiff, Illinois Bell Telephone Company (Bell), seeks to have certain of its revenues declared exempt from the Illinois messages tax (Ill. Rev. Stat. 1979, ch. 120, par. 467.1 et seq.) and to enjoin the defendant, the Department of Revenue (the Department), from collecting the taxes at issue. The Department moved to dismiss on the ground Bell had failed to exhaust its administrative remedy, and this motion was denied by the circuit court. This court, after allowing a direct appeal under its Rule 302(b) (73 Ill. 2d R. 302(b)), affirmed the circuit court. Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350.

The parties then went to trial in 1979 on two issues: (1) Did the Messages Tax Act apply during the period in dispute (1967 to 1973) to revenues Bell received from its participation in the transmission of messages which originate or terminate outside this State (interstate messages); and (2) Does Bell owe the messages tax on revenues paid to and retained by other telephone companies for their participation in the transmission of intrastate toll messages pursuant to contracts with Bell and on which the other companies themselves pay a message tax.

On the first issue, the circuit court concluded that the messages tax applied to Bell’s interstate revenue during the period in dispute, and that Bell owed the State $115,150,855 for this period for back taxes, penalties and interest. On the second issue, which involved approximately $13,160,000 in claimed taxes, the circuit court held in favor of Bell, concluding that payments Bell made or credits it allowed to other telephone companies pursuant to traffic agreements approved by the Illinois Commerce Commission were proper deductions from the Bell revenues subject to the tax. The appellate court reversed the judgment for back taxes, penalties and interest on interstate messages and affirmed the circuit court’s holding that Bell was not obligated to pay a messages tax on the amounts paid or credited to other telephone companies on intrastate calls. (95 Ill. App. 3d 115.) We allowed the Department’s petition to appeal to this court.

INTERSTATE REVENUES

The appellate court gave three reasons for reversing the circuit court on this aspect of the case. First, the language and history of the statute do not permit a construction which includes interstate messages within the scope of the authorized tax. Second, even if the statute permitted taxation of interstate revenues, the Department is bound by the written regulations it promulgated and the tax forms it disseminated, and imposition of the tax retroactively would be contrary to those regulations and forms. Finally, if the statute were to be applied in the manner the Department contends it should be, the statute would be vague and uncertain and thus violative of due process requirements. We affirm the appellate court because we believe the language and history of the statute make it inapplicable to interstate revenues. This makes it unnecessary to consider the two additional grounds on which the appellate court relied.

In taxing the transmission of messages, the State may exclude interstate revenues and apply the tax only to revenues from messages which begin and end in this State. (Adler v. Illinois Bell Telephone Co. (1978), 72 Ill. 2d 295.) The wording of the taxing statute, the law in effeet when it was passed controlling a State’s authority to tax interstate messages, the statute’s relationship to its predecessor and companion statutes, the Department’s own interpretation of the statute, and the fact that the statute was subsequently amended with no change in the portion directly involved in this dispute indicate that the legislature intended to impose that kind of tax.

The portion of the Messages Tax Act which we are called upon to construe and apply is section 2. It provides:

“A tax is imposed upon persons engaged in the business of transmitting messages in this State at the rate of three per cent (3 %) of the gross receipts from such business ***. However, such tax is not imposed upon the privilege of engaging in any business in interstate commerce or otherwise to the extent to which such business may not, under the Constitution and statutes of the United States, be made the subject of taxation by this State.” (Emphasis added.) Ill. Rev. Stat. 1945, ch. 120, par. 467.2.

Two occupation taxes on transmission of messages in Illinois were adopted before the present statute. The first was a part of the Public Utility Tax Act enacted in 1935 (Ill. Rev. Stat. 1935, ch. 120, par. 440 et seq.). The second was included in the public utilities revenue act passed in 1937 (Ill. Rev. Stat. 1937, ch. 120, par. 468 et seq.). These statutes, in the words of the 1937 act, covered the gross receipts of “persons engaged in the business of transmitting telegraph or telephone messages or of distributing, supplying, furnishing or selling gas or electricity to persons for use or consumption and not for resale ***.” (Ill. Rev. Stat. 1937, ch. 120, par. 469.) Both statutes provided that the “taxes are not imposed with respect to any transaction in interstate commerce, or otherwise, which transaction may not, under the constitution and statutes of the United States, be made the subject of taxation by this State.” Ill. Rev. Stat. 1935, ch. 120, par. 441; Ill. Rev. Stat. 1937, ch. 120, par. 469.

At the time of these taxing measures, New Jersey Bell Telephone Co. v. State Board of Taxes & Assessment (1930), 280 U.S. 338, 74 L. Ed. 463, 50 S. Ct. Ill, represented the prevailing law. That decision announced that although a State might tax property used to carry on interstate commerce, it could not tax or burden interstate commerce or tax gross earnings derived therefrom or impose “a license fee or other burden upon the occupation or the privilege of carrying on” interstate commerce, whatever may be the means employed to that end. That case prohibited a State from collecting a direct tax on gross receipts from interstate commerce. Cooney v. Mountain States Telephone & Telegraph Co. (1935), 294 U.S. 384, 79 L. Ed. 934, 55 S. Ct. 477, followed the same principle, holding that a State tax on telephone instruments used in making both intrastate and interstate calls was a privilege or occupation tax imposed through an indiscriminate application to instrumentalities common to both intrastate and interstate service, and as such the tax was an unconstitutional burden on interstate commerce.

The regulations promulgated by the Department relating to the 1935 and 1937 taxes on messages provided that the tax was not imposed on revenues from the transmission of any message that either “originates” or “terminates” “outside of Illinois.” These regulations described such messages as being in interstate commerce and not taxable. They also provided that, where the message originates in Illinois and is transmitted to a second point in Illinois, the transaction is taxable even when a portion of the lines used for the transmission are outside Illinois. It is thus clear that the predecessors of the tax which is involved in this case authorized a tax only with respect to revenues from the transmission of intrastate messages notwithstanding the proviso in those statutes quoted above stating that taxes were not being imposed on transactions in interstate commerce which may not under the Constitution and statutes of the United States be taxed by Illinois.

The legislature adopted the Messages Tax Act with which we are concerned in this case in 1945. (Ill. Rev. Stat. 1945, ch. 120, par. 467.1 et seq.) There is nothing in the history of that statute or in the wording of the statute in comparison with its predecessor statutes adopted in 1935 and 1937 to suggest that the legislature intended to enact a different type of tax in 1945. Moreover, the history of the Messages Tax Act and its wording, as compared with the wording of two other tax acts contemporaneously adopted in 1945, indicate the contrary. In that year the General Assembly divided the public utilities revenue act into three separate taxing statutes — the Messages Tax Act, applying to transmittal of messages, the Gas Revenue Tax Act (Ill. Rev. Stat. 1945, ch. 120, par. 467.16 et seq.), applying to the business of selling gas, and the Public Utilities Revenue Act (Ill. Rev. Stat. 1945, ch. 120, par. 468 et seq.), taxing the business of selling electricity. When these three statutes were enacted, the law continued to prohibit the taxation of receipts from interstate messages. See Joseph v. Carter & Weekes Stevedoring Co. (1947), 330 U.S. 422, 432-34, 91 L. Ed. 993,1003-04, 67 S. Ct. 815, 821.

The language the legislature used in contemporaneously taxing the transmission of messages, the sale of gas, and the delivery of electricity is significant. The phrase “in this State,” as used in section 2 of the Messages Tax Act quoted above, is not found in the Gas Revenue Tax Act at all, while the Act taxing sales of electricity uses the phrase in an entirely different context. The statute relating to the business of selling electricity taxes “persons engaged in this State in the business of” selling electricity. (Ill. Rev. Stat. 1945, ch. 120, par. 469.) The use of the limiting phrase “in this State” in the Messages Tax Act, as compared with its use in the Public Utilities Revenue Act to modify “persons” and its complete omission from the Gas Revenue Tax Act, demonstrates that the legislature used the phrase in the Messages Tax Act to modify “messages.” The use and placement of the phrase “in this State” indicate that it was employed as a limitation upon the area in which such messages must move, that is, “in this State” as compared with wholly or in part outside Illinois.

Turning to the specific language of section 2 of the Messages Tax Act of 1945, we reach the same conclusion. We are not persuaded by the Department’s argument that the phrase “in this State” modifies “persons” and has nothing to do with the scope of the tax. The tax applies to the “business of transmitting messages in this State” at a specified percent of the “gross receipts from such business.” (Ill. Rev. Stat. 1945, ch. 120, par. 467.2.) The business referred to is transmitting messages in this State. The words “in this State” modify “messages,” not “persons,” and declare which gross receipts are subject to the tax. Under the last-antecedent rule of statutory construction, which is followed in Illinois (City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 375), the qualifying phrase “in this State” modifies the immediate preceding word “messages.” This supports the conclusion that the Act authorized taxation only on messages which both begin and end in Illinois.

The result we reach also follows from the presumption that the legislature in 1945 intended to enact a valid taxing statute. Statutes are to be interpreted in a manner consistent with “the state of the law existent at the time of their enactment.” (People v. Boreman (1948), 401 Ill. 566, 571-72.) Adhering to this principle this court in Adler v. Illinois Bell Telephone Co. (1978), 72 Ill. 2d 295, 297, construed a city of Chicago message tax adopted when Federal constitutional law barred taxes on interstate revenues as not applicable to such revenues even though the ordinance on its face was not limited to intrastate calls. In examining section 2 of the Messages Tkx Act we conclude that the General Assembly did not intend to tax interstate revenues either in 1935, 1937 or 1945 because Federal constitutional law, as construed and applied in judicial decisions, prohibited such taxation at those times. Again we observe that the terms of the Messages Tkx Act expressly reflected the specific regulations previously applicable to the 1935 and 1937 acts and were consistent with the Federal prohibition against burdening interstate commerce with a direct tax on gross receipts from interstate messages.

New Jersey Bell Telephone Co. v. State Board of Taxes & Assessment and Cooney v. Mountain States Telephone & Telegraph Co., both referred to above, held prior to the enactment of the 1945 messages tax that a State privilege or occupation tax on interstate commerce is constitutionally prohibited. In the latter case the Supreme Court, addressing this question, said:

“There is no question that the State may require payment of an occupation tax from one engaged in both intrastate and interstate commerce. But a State cannot tax interstate commerce; it cannot lay a tax upon the business which constitutes such commerce or the privilege of engaging in it. And the fact that a portion of a business is intrastate and therefore taxable does not justify a tax either upon the interstate business or upon the whole business without discrimination.” Cooney v. Mountain States Telephone & Telegraph Co. (1935), 294 U.S. 384, 392-93, 79 L. Ed. 934, 941, 55 S. Ct. 477, 481-82.

Years before the Supreme Court had held that express companies whose vehicles were used to haul both intrastate and interstate shipments out of New York City were immune from a city licensing fee. (Barrett v. City of New York (1914), 232 U.S. 14, 58 L. Ed. 483, 34 S. Ct. 203.) Again in Freeman v. Hewit (1946), 329 U.S. 249, 252, 91 L. Ed. 265, 271, 67 S. Ct. 274, 276, in prohibiting an Indiana gross income tax on an Indiana broker, the court observed that the commerce clause “by its own force created an area of trade free from interference by the States.” That tax contained a proviso similar to that in section 2 of the Illinois Messages Tax Act excepting from its scope “such gross income as is derived from business conducted in commerce between this state and other states *** to the extent to which *** Indiana is prohibited from taxing such gross income by the Constitution of the United States.” 329 U.S. 249, 250, 91 L. Ed. 265, 271, 67 S. Ct. 274, 275-76.

Spector Motor Service, Inc. v. O’Connor (1951), 340 U.S. 602, 95 L. Ed. 573, 71 S. Ct. 508, is another authority holding that this principle of constitutional law was still adhered to six years after the messages tax was enacted. Spector was a motor freight line engaged in hauls in interstate commerce. Its trucks went directly to a customer’s place of business in Connecticut to pick up full truckloads and then took them directly out of Connecticut. When less than full-truckload shipments were available, Specter’s pickup trucks gathered freight from customers and took it to two terminals operated by the company within the State of Connecticut where it was assembled into full truckloads and then transported outside Connecticut. The court held that the pickup trucks merely acted as part of the interstate transportation and observed that there was long-established precedent for keeping interstate commerce free from State taxation on the privilege of doing business. It was not until 1977 when Spector Motor Service, Inc. v. O’Connor was overruled by Complete Auto Transit, Inc. v. Brady (1977), 430 U.S. 274, 51 L. Ed. 2d 326, 97 S. Ct. 1076, that the rule that a State tax on the privilege of doing business is per se unconstitutional when applied to interstate commerce finally collapsed.

The Department argues that Spector provided a sanctuary for interstate commerce against a State occupation tax only where the business being taxed did not conduct intrastate activity as well as interstate activity. Although the carrier which the State of Connecticut sought to tax in Spector was not engaged in any intrastate shipments in that State, we find nothing in the opinion to indicate that applying the tax to interstate business would have been more acceptable had the company at the same time been an intrastate carrier in Connecticut. The Supreme Court addressed the subject of whether an occupation tax was more palatable when imposed on both interstate and intrastate commerce than when imposed only on the former in both the portion of Cooney v. Mountain States Telephone & Telegraph Co. quoted above and in Freeman v. Hewit. In both cases it answered in the negative. In Freeman v. Hewit it said:

“Of course a State is not required to give active advantage to interstate trade. But it cannot aim to control that trade even though it desires to control its own. It cannot justify what amounts to a levy upon the very process of commerce across State lines by pointing to a similar hobble on its local trade. It is true that the existence of a tax on its local commerce detracts from the deterrent effect of a tax on interstate commerce to the extent that it removes the temptation to sell the goods locally. But the fact of such a tax, in any event, puts impediments upon the currents of commerce across the State line, while the aim of the Commerce Clause was precisely to prevent States from exacting toll from those engaged in national commerce.” Freeman v. Hewit (1946), 329 U.S. 249, 254, 91 L. Ed. 265, 273, 67 S. Ct. 274, 277.

As late as 1959, in Northwestern States Portland Cement Co. v. Minnesota (1959), 358 U.S. 450, 458, 3 L. Ed. 2d 421, 427, 79 S. Ct. 357, 362, which initiated the erosion of Spector culminating in Complete Auto Transit, and which involved a State net income tax on a corporation engaged exclusively in interstate commerce, the court summarized the holding in Spector in the following sentence:

“Moreover, it is beyond dispute that a State may not lay a tax on the ‘privilege’ of engaging in interstate commerce.” 358 U.S. 450, 458, 3 L. Ed. 2d 421, 427, 79 S. Ct. 357, 362.

Thus, the law which prevailed at the time the Messages Tax Act was adopted was that a State was prohibited by the commerce clause from imposing an occupation tax on interstate commerce, regardless of whether the enterprise being taxed also engaged in commerce confined to the taxing state.

Our conclusion regarding the scope of the Messages Tax Act is supported by the unchanging interpretation given the statute by the administrative department charged with enforcing it and the fact that while the legislature has amended the statute it has never changed the provisions with which we are now concerned. The regulations adopted by the Department with respect to the 1945 act shortly after its passage were compatible with those relating to the two predecessor acts, and the Department continued to adhere to those regulations for more than two decades. The consistent and contemporaneous construction by those charged with the administration of the Act, a construction which went unchallenged by the legislature, is persuasive in arriving at the proper interpretation to be given the statute. (Johnson v. Robison (1974), 415 U.S. 361, 367-68, 39 L. Ed. 2d 389, 398, 94 S. Ct. 1160, 1166; People ex rel. Watson v. House of Vision (1974), 59 Ill. 2d 508, 514-15.) The Messages Tax Act has been amended nine times since its passage in 1945, two of these amendments being of section 2, the provision which imposes the tax. But the legislature has never amended the Act to change the manner in which the Department was interpreting and applying it; nor has the legislature changed the statutory terms to which Bell directs our attention. (American Oil Co. v. Mahin (1971), 49 Ill. 2d 199, 205-06.) The following observation in People ex rel. Spiegel v. Lyons (1953), 1 Ill. 2d 409, 414, is relevant:

“That the statute has remained unaltered through successive sessions of the General Assembly since 1941 [in this case since 1945] indicates legislative acquiescence in the contemporary and continuous administrative interpretation.”

The Department’s principal argument appears to be that the Messages Tax Act of 1945 is a flexible type of statute which taxes interstate service to the extent Federal constitutional law may from time to time permit. The circuit court judge characterized it as a tax in a “state of vacillation.” The Department contends that, if the tax is not regarded as opening the door for taxation of interstate as well as intrastate service, the proviso in section 2 that the tax is not imposed on interstate service to the extent to which such service or business is prohibited by the Constitution and statutes of the United States from being taxed by the State of Illinois would be meaningless. We do not believe that to save the messages tax from being meaningless it has to be applied like an accordion stretching in and out with changes in the interpretation of the Constitution so far as the authority to tax interstate service is concerned.

The provision in question is a routine one. Identical language appears in the other two taxing measures enacted in 1945 at the same time as the Messages Tax Act, the Gas Revenue Tkx Act (Ill. Rev. Stat. 1945, ch. 120, par. 467.17) and the Public Utilities Revenue Act (Ill. Rev. Stat. 1945, ch. 120, par. 469). It appears in some form generally similar to the Messages Tkx Act proviso in several Illinois occupation tax statutes. See the Illinois Service Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.103), the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 441), the Cigarette Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 453.2), and the Tobacco Products Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 453.83).

The interpretation we give section 2 does not render the proviso in question meaningless. The proviso saves the statute from invalidity in the event Federal law were held to preclude taxation of some of the intrastate services incorporated into the first sentence of section 2. This question might arise, for example, in connection with an intrastate telephone call to place an interstate telegram. The applicable regulations taxed revenues from the telephone call, but a challenge to this tax on the ground the telephone call was an integral part of the interstate telegram might be advanced in view of a holding such as that in Joseph v. Carter & Weekes Stevedoring Co. (1947), 330 U.S. 422, 91 L. Ed. 993, 67 S. Ct. 815. The court decided in that case that intrastate stevedoring is so integrally a part of interstate commerce that the revenues of stevedoring companies from loading vessels employed in interstate and foreign commerce are immunized from State taxation.

We do not find the Department’s argument that the purview of the tax expands with removal of constitutional limitations on a State’s right to tax interstate transactions sound. The scope of a statute is fixed by the conditions which exist and the law which prevails at the time the statute is adopted. This court has observed that “[sjtatutes are to be construed as they were intended to be construed when they were passed.” (Emphasis added.) (People v. Boreman (1948), 401 Ill. 566, 572; see People v. Day (1926), 321 Ill. 552.) Some statutes utilize words that clearly envision that their operation and scope are to change with changes in the underlying law without the need for further approval by the legislature. The Messages Thx Act is not such a statute. It does not expressly provide that changes in the constitutional law by judicial decision or constitutional amendment which authorize the General Assembly to do what it previously was restricted from doing should expand the reach of the statute without further legislative action. On the contrary, as we read the statute, the legislature would then have to decide whether it wished to exercise its expanded authority.

In Green, v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, we decided that our long-arm statute was not in a state of vacillation, expanding or contracting such jurisdiction to the extent permitted by cases decided from time to time construing and applying the due process clause in determining when jurisdiction over a nonresident is proper. We held there that our long-arm statute had a fixed meaning without regard to changes in the concepts of due process. Similarly, we believe the Messages Tax Act had a fixed meaning when it was enacted regarding what revenues it taxed, notwithstanding judicial decisions several years later enlarging the authority of a State to tax interstate transactions. The proviso in section 2 does not contemplate an expansion of the scope of the act; it provides merely that the fixed meaning of the act may contract further should it collide with any existing or new constitutional provision, as we have noted. Hence in interpreting the Messages Tax Act we must look to the state of the law concerning a State’s authority to tax interstate business at the time the Act was adopted in 1945, not to the law in later years when Federal decisions expanded that authority.

Even if we were less confident that the scope of the Messages Tax Act was limited to intrastate messages in 1945, any doubts that remained would have to be resolved in favor of Bell. This court adhered to this principle in Oscar L. Paris Co. v. Lyons (1956), 8 Ill. 2d 590, 598, and reasserted it recently in Getto v. City of Chicago (1979), 77 Ill. 2d 346, 359. The teaching of Oscar L. Paris Co. was:

“Taxing laws are to be strictly construed and they are not to be extended beyond the clear import of the language used. If there is any doubt in their application they will be construed most strongly against the government and in favor of the taxpayer.” Oscar L. Paris Co. v. Lyons (1956), 8 Ill. 2d 590, 598.

Finally, the Department argues that irrespective of whether the Messages Tax Act authorized taxation of interstate revenues, Bell has failed to establish that the revenues in dispute are from interstate calls, and thus Bell has failed as a matter of proof to cloak these revenues with the interstate exemption. The circuit court found to the contrary, and the Department is bound by that finding, especially because it stipulated that the revenues in issue are the amounts which Bell retained from its billing for interstate toll calls.

The Department also argues that Bell has forfeited the interstate exemption because it reports as its interstate revenue the amounts it receives after crediting other phone companies for remuneration to which they are entitled for use of their lines instead of the amounts Bell actually bills its customers for their interstate calls. We find no merit in this argument because the manner in which Bell reports its gross receipts complies fully with the definition of gross receipts in the Act itself as well as with the regulations. There is no point in treating billings as the equivalent of gross receipts because the former would include revenue for use of lines completely outside Illinois which even the Department does not claim is within the scope of the tax. The appellate court offered an example which convincingly demonstrates this point: a call from one point outside Illinois to another point outside Illinois, but billed to a Chicago number. Bell, in that case, would collect from its Chicago subscriber, but would credit the revenue to the phone companies whose lines were actually used in the call. This is not Bell’s revenue at all.

The Department also finds fault with the manner in which Bell reported its interstate revenues, contending the method Bell followed could have reduced its tax liability. Bell included on one line the portion of its billings for interstate calls that it retained and then included the same figure in a deduction it made on a lower line of the reporting form. If Bell had handled the reporting in the way the Department now argues it should have — by including all interstate billings on the earlier line and subtracting that figure on the lower line — the bottom line figure would have been exactly the same. Either method of reporting leaves Bell’s intrastate receipts as the amount reported.

Although we regard Bell’s method of reporting its revenues as in compliance with both the statute and the regulations, the Department’s objections to the manner of reporting are not relevant to the question which confronts us. That question is whether interstate revenues are within the scope of the statute adopted in 1945. Even if Bell failed to report its interstate revenues properly, we do not understand how that would authorize including those amounts within the revenues subject to tax if the statute imposing the tax exempts those amounts from taxation.

With respect to taxation of interstate revenues, the appellate court was right and the circuit court was wrong.

INTRASTATE REVENUES

This aspect of the appeal involves amounts reflected in Bell’s records which are attributable and transmitted to telephone companies other than Bell under division-of-revenue formulas applied to determine the share of toll charges each of two or more telephone companies should receive for transmitting a message over its lines. The toll calls in question are intrastate, originating at one point in Illinois and terminating at another point in this State. The division-of-revenue formulas are negotiated between the telephone companies operating in Illinois and carried out by means of traffic agreements negotiated between the companies which directly interconnect. The traffic agreements are approved by the Illinois Commerce Commission. They provide for the way traffic is to be routed and establish the formulas and procedures for dividing revenues from calls that are transmitted over the facilities of more than one company.

The Department claims that Bell is liable for the messages tax on the total revenues it collects even though a portion of those revenues are credited and paid under the traffic agreements to other telephone companies whose lines were used in completing the toll calls. The Department views the division of revenue as payments made by Bell to other telephone companies for furnishing their facilities or equipment in completing the calls which are initiated through Bell. Thus, instead of a sharing of revenue between Bell and other telephone companies the Department regards the payments in question as charges for services furnished by other telephone companies to Bell. These payments, according to the Department, are a part of Bell’s cost and expenses of doing business and not deductible from the gross receipts of Bell on which the tax is based. Ill. Rev. Stat. 1981, ch. 120, pars. 467.1, 467.2.

Bell, on the other hand, takes the position that the messages tax is payable, as Bell has paid the tax over the years, only on the portion of revenues it retains after settling up with the other telephone companies for the share of revenues to which they are entitled for transmitting toll calls over their lines. Bell points out that it neither leases nor rents the equipment and facilities of the other telephone companies, and the other companies neither work for it nor are a part of Bell. In fact, the Public Utilities Act requires the other telephone companies in Illinois to own, operate and equip the telephone facilities within the areas they serve, and no telephone company is permitted to acquire a lease on or own, operate or control any aspect of the business of another company or transact any business in the area the other company services without express approval from the Commission. (Ill. Rev. Stat. 1981, ch. 111⅔, par. 27(b).) In addition the traffic agreements involving Bell which the Illinois Commerce Commission has approved provide that the other telephone companies will equip, own, operate, and control their own systems.

There are approximately 57 telephone companies (sometimes referred to herein as the independent companies) operating in Hlinois, each serving a different area. Unlike Bell, the independent companies are relatively small entities. The systems of all the telephone companies in Illinois are directly or indirectly interconnected so that a call may be placed from one phone to another within the State even though each phone is served by a different company. Each telephone company is authorized by the Illinois Commerce Commission to use its separately owned, operated and maintained facilities and equipment to provide an integrated telephone service to the public, not to Bell; in other words the facilities and equipment of each telephone company provide a link in a statewide system available to serve the public.

The traffic agreements referred to above place on each company the responsibility for collecting all charges owing by its subscribers and customers, including charges for credit card calls. They also give each company responsibility for accounting for and making payments to the other companies for their share of the charges. At the same time, the traffic agreements assign to Bell administrative functions in carrying out the division of revenues between approximately three-quarters of the telephone companies in Illinois with which it interconnects and between itself and those companies.

As part of its administrative function Bell disseminates monthly statements showing the share of toll revenues each of the independents with which it connects is to receive. These statements are calculated under the applicable formula on the basis of data the other telephone companies have furnished Bell; this data consists of each company’s total amount of toll billings and in some instances the total number of toll calls it handled.

After the settlement figures are computed, sufficient funds are transferred between the companies to give each company the share of the revenues billed to which it is entitled. At the time of collection, each company enters the amount it collects from its customers for toll services in its revenue account. These accounts are then adjusted when funds are transferred between the companies to reflect the proper and final division of revenues.

It was after this legislatively sanctioned arrangement for cooperation and sharing of revenues between the many telephone companies in Illinois was already in place that the Messages Tax Act was adopted. Section 1 of the Act (Ill. Rev. Stat. 1981, ch. 120, par. 467.1) defines gross receipts as “the consideration received for the transmission of messages and for all services rendered in connection therewith *** without any deduction on account of the cost of transmitting such messages, the cost of materials used, labor or service costs or any other expense ***.” The same section of the Act, in defining “transmission of messages,” includes the furnishing of services or facilities connected with the sending of messages but only if the recipient “do[es] not, in turn, receive any consideration in connection therewith.” Ill. Rev. Stat. 1981, ch. 120, par. 467.1.

The provisions of the Act, as we read them, demonstrate that the legislature intended to impose a tax on the total amount billed consumers for toll calls in this State by taxing each telephone company only upon its share of the total revenues collected. Only funds which are received as a company’s consideration for the “furnishing of services or facilities” are taxable to that company. The Department’s Messages Tax Act regulations are even more explicit on this subject. They have provided since the first Messages Tax Act was enacted in 1935 that the tax is only upon amounts received and retained by a company as its consideration for its part in the transmission of messages:

“[Wjhere a message is transmitted over the lines of more than one telephone or telegraph company * * * the gross receipts of each telephone or telegraph company *** are that portion of the total messages charge received and retained by each such company as its consideration for its part of such transmission.” (Emphasis added.) (Illinois Department of Revenue, Rules and Regulations Relating to the Messages Tax Act, art. 10(B).)

This regulation recognizes that individual phone companies will receive only a portion of the total messages charge.

We conclude that where more than one telephone company is engaged in- the transmission of a message, the amounts any company receives from the billing company or from Bell pursuant to their traffic agreement is not a cost or expense of doing business of either the billing company or Bell. The amount collected by the billing company or Bell does not represent “consideration received” as that term is used in section 1 of the Messages Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 467.1). On the contrary, these amounts are gross receipts of the telephone company whose facilities have contributed to completion of the call for its part in such transmission. Under article 10(B) of the Department’s messages tax regulations these are gross receipts taxable to the participating company which receives them rather than to the billing company or Bell, which, as the case may be, may collect them or temporarily hold them. Under the division-of-revenues concept, the telephone companies act as collection agents for each other in the functioning of an integrated, interconnected, statewide telephone network, not as independent contractors furnishing services to each other and charging compensation for those services. (Phillips v. Illinois Bell Telephone Co. (1966), 34 Ill. 2d 234.) Viewing the relationship between the telephone companies as we do, it follows that the Messages Thx Act imposes the tax on the portion of the billings each company receives and retains under the division-of-revenue formula.

When an independent telephone company’s service and facilities are utilized in transmitting a message, it is satisfying its statutory obligation to the public, and it is to the public rather than to Bell or any other telephone company that its services and facilities are being provided. Those companies, rather than Bell, are the providers of telephone service in the regions in which Bell is obliged to route calls through their facilities. The costs and expenses of participating telephone companies are their costs and expenses, not those of Bell, and their costs and expenses are paid for by telephone users, not by Bell. By the same token, Bell does not pay other telephone companies for using their facilities; it simply performs the administrative function of calculating how much of the total charge they are entitled to have for the use of their own facilities by the public. We know of no occupational tax statute which requires a taxpayer to pay taxes on revenues which belong to someone else and over which the taxpayer never claims rights of ownership; we find nothing in the Messages Tax Act which allows it to be imposed in so extraordinary a fashion.

Finally, figures representing amounts collected by independent companies with which Bell has traffic agreements appear in Bell’s records; the Department urges that these amounts represent gross revenues on which the tax is payable. Generally speaking, the figures that the Department claims are taxable under this theory appear in Bell’s records in connection with its administrative function of computing the settlement statements as required by the traffic agreements between it and the independent companies with which its lines interconnect. According to Bell, the only times Bell holds any of these amounts, even temporarily, is when an independent company happens to bill its customers less than it is entitled to receive and retain.

If Bell were not performing the administrative function of calculating the settlements owing each company, these amounts would never appear in its records. The reporting of statistical data to Bell by the independent companies does not constitute receipt of revenue by Bell. Even assuming that the reporting of information to Bell by the independent companies for the purpose of computing the allocations of revenue to which each company is entitled could be treated as a receipt of money, it is obvious that Bell is not receiving money as “consideration *** for the transmission of messages,” the only type of receipt which is taxable. (Ill. Rev. Stat. 1979, ch. 120, par. 467.1.) It was clearly not the intention of the legislature that performance of a mechanical calculating function, a role which could no doubt be fulfilled as satisfactorily by an accounting firm or an escrow trustee, should subject the calculator to a messages tax on all the toll revenues relevant to the calculation. The circuit and appellate courts were correct when they held that the amounts which are reported to Bell by other telephone companies in calculating the settlement figures do not subject Bell to a tax on those amounts.

The Department argued unsuccessfully in the appellate court that Bell’s tax returns are improper because they are based on gross services rendered rather than on gross receipts. (95 Ill. App. 3d 115, 133-35.) Although the Department asserts in several places in its briefs before this court that Bell’s tax calculations reflect something other than gross receipts, it does not appear to raise this precise argument before us, and we do not address it here.

The judgment of the appellate court is affirmed.

Judgment affirmed.

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

JUSTICE GOLDENHERSH,

specially concurring:

I agree with the conclusion reached by the majority but cannot agree with all that is said in the opinion. The only reason for not holding the taxpayer liable here is that the Department’s erroneous construction of the statute prevented the taxpayer from recovering from its subscribers that portion of the tax authorized to be collected under section 36 of the Public Utilities Act (Ill. Rev. Stat. 1977, ch. 111⅔, par. 36).

Article XII(1) of the 1974 edition of the rules and regulations published by the Department of Revenue, without further qualification, provides that a taxpayer who transmits a message in interstate commerce “is not liable for tax with respect to his receipts therefrom.” That, of course, erroneously construes the statute.

Save for the fact that the taxpayer was deprived of the opportunity to recover a portion of the tax from its subscribers the erroneous interpretation by the Department should not serve to preclude collection of the tax. As the court said in Martin Oil Service, Inc. v. Department of Revenue (1971), 49 Ill. 2d 260, 269:

“It is undeniable that weight should be given a contemporaneous construction placed on an ambiguous statute by the officers charged with the duty of administering it. We do not believe the statute is ambiguous. Even if ambiguity is assumed, the rule obviously cannot be invoked to prevent those officers from rectifying an erroneous construction. An administrative construction of a statute is not binding if it is erroneous. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 77 L. Ed. 796, 807; Superior Coal Co. v. Department of Revenue, 4 Ill. 2d 459, 468.”

Finally, I cannot agree with the majority’s interpretation of the statute or with its conclusion concerning the legislative intent. I fail to see why it was necessary to engage in a discussion concerning the last antecedent rule of statutory construction and ignore authority which considered a statute containing the same language. In Standard Oil Co. v. Department of Finance (1943), 383 Ill. 136, 141, it was held that a tax “imposed upon persons engaged in the business of selling tangible personal property at retail in this State” referred to the occupation rather than to the sales. Had the General Assembly intended to limit the applicability of the tax to those messages transmitted in intrastate commerce it would have been a simple matter to do so.

Furthermore, I cannot agree with the majority’s conclusion that this is a “contracting” form of tax statute. Most taxpayers have encountered expanding forms of tax statutes, but a tax statute allegedly intended to contract the scope of its applicability is, indeed, rarely to be found. The justification for the contracting statute theory is that it “saves the statute from invalidity in the event Federal law were held to preclude taxation of some of the intrastate services incorporated into the first sentence of section 2.” (93 Ill. 2d at 254-55.) There is, of course, no authority cited in support of this statement for the obvious reason that there is none. In the face of a trend over a 50-year-period to expand the scope of permissible State taxation it appears unduly speculative to surmise that the General Assembly might have anticipated the imposition of a restriction which would limit the scope of its authority to impose a tax on the activity of the taxpayer.

These cases should not be decided in a vacuum. The only common sense reading of the statute is that the General Assembly wished to extend the scope of the tax to the extent constitutionally permissible. It is unfortunate that the failure to promulgate appropriate regulations permits the taxpayer to escape payment of the tax.


author: JUSTICE MORAN

text:
    (No. 55869.
    RICHARD E. LYNCH, Appellee, v. PRECISION MACHINE SHOP, LTD., Appellant.

      Opinion filed December 17, 1982.

      Richard Kruger, of Kruger & Foster, of Metropolis, for appellant.
    Edward J. Kionka, of Carbondale, and J. Mark Maclin, of DuQuoin, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Richard E. Lynch, brought suit in the circuit court of Perry County to recover a money judgment allegedly due him from defendant, Precision Machine Shop, Ltd. The action arose out of repair work plaintiff performed for defendant on a river-barge transmission and on the gear box of a boring mill. Defendant counterclaimed for damage allegedly caused by plaintiff to the gear box and for additional sums expended while the mill was out of commission. Following a bench trial, the trial court entered final judgment in the sum of $2,270 to plaintiff for repairs performed on the barge transmission, but denied plaintiff recovery for his repairs on the boring mill. The court entered judgment in favor of defendant on its counterclaim in the amount of $9,033.76 for repair of the gear box and $3,300 for extra expenses incurred by defendant in completing a job without use of the mill. The appellate court affirmed the portion of the judgment pertaining to the barge transmission. With respect to the boring mill, a majority of the appellate court reversed the trial court’s judgment on defendant’s counterclaim and entered judgment for plaintiff of $2,441.32 for his work on the mill. 100 Ill. App. 3d 771.

The questions before us relate only to plaintiff’s repair work on the boring mill. They are: (1) Did defendant, as counterclaimant, establish the necessary elements of res ipsa loquitur to support its judgment for repair of the gear box? (2) Was defendant entitled to damages incurred during the period of repair of the gear box?

The facts reveal the boring-mill gear box is approximately three feet long, two feet high and one and one-half feet deep. It is made of cast iron and contains the gear mechanisms and clutches for the mill. The top quarter of the gear box is a solid cast-iron cover weighing between 400 and 500 pounds. It is attached by nine bolts and two dial pins; its removal requires a hoist and at least two people working several hours. The cover has some “oil openings” estimated at between Vie to 3/ie inches in diameter. A hole approximately IV2 inches in diameter is located at the rear of the box. With the cover in position, it is unlikely that anything other than oil could be inserted into the gear box.

In 1975, the first year defendant was in possession of the boring mill, plaintiff performed some repair work on the machine. The record does not indicate that the cover was removed for that work. Then in July through September of 1976, plaintiff performed additional work on the machine that necessitated removal of the cover. Plaintiff testified that he was assisted in these repairs by several of defendant’s employees. At the conclusion of the work, prior to replacing the cover, he inspected the gear box visually and manually and found no foreign objects. Plaintiff also stated that the cover would not fit if foreign materials were present.

From September 1976 to March 1977, the cover to the gear box was not removed. During this period, the mill was used to bore one or two wheels, each taking approximately six hours. The testimony indicated that this operation did not require full use of the feed mechanism.

In March 1977, plaintiff was called to install a transmission at the rear of the gear box, a job that required removal of the cover. He was assisted by at least one of defendant’s employees and by a contractor he employed. The cover was removed by these employees just prior to his arrival. Plaintiff testified that before the cover was replaced at the conclusion of the job he inspected the interior of the gear box but did not reach down and check the oil pan “in explicit detail.” He stated that he observed no foreign objects. Plaintiff tested the machine but did not run a workpiece on it. Precision paid Lynch for the 1976 work but not for the 1977 repairs.

Following installation of the transmission in March, the mill was used, without incident, to bore two wheels, each wheel taking between six and 12 hours. Subsequently, in November 1977 Larry Hays, defendant’s machinist, was using the mill to rebore a large log loader. The task entailed use of the full feeding mechanism. At this time the mill made a “breaking sound” and stopped functioning 15 minutes into the job. Hays told the shop foreman, Clifford Browning, of the incident and, for the first time since plaintiff’s previous repair work, the cover to the gear box was removed. The two men observed that six teeth were missing from one ring gear, another ring gear was broken, and the planetary gear housing was cracked. They discovered a chisel, a section of file and two brass washers in the oil reservoir at the bottom of the gear box. The chisel was chipped in a way that would suggest it might have been between the gears. The witnesses agreed that none of these objects should have been in the oil reservoir, although the two washers should have been attached to parts elsewhere in the gear box.

Plaintiff testified that the chisel and file could have caused the damage to the gear box but that other things, such as worn parts, also could have been responsible. He stated his belief that it would be nearly impossible for the oil in the pan to throw the chisel into the gear assembly. Hays testified that the 50-weight oil in the reservoir was so heavy that a light chisel would almost float in it. In his opinion, the gears operating at a fast rate of speed could cause enough turbulence for the oil to pick up the chisel and cause it to catch in the assembly’s gears. Browning also testified that the churning action of the oil could pull the chisel from the bottom of the gear box.

Neither a chisel nor a file was used in removing the gear-box cover when the problem occurred in November 1977. Plaintiff did not remember using a chisel, but did testify that a file was used in repairing the gear box both in 1976 and in March 1977. Plaintiff, Hays, and Browning all testified to the effect that it would be very difficult, if not impossible, for the chisel and file to enter the oil reservoir without removal of the gear-box cover.

Browning also testified that defendant’s employees repaired the boring mill at a cost of $9,033.76. He further stated that, because the mill was out of commission, the job in progress had to be performed with portable units. This resulted in 200 additional hours of work at $16.50 per hour. Based on these figures, the trial court made the above-stated awards on defendant’s counterclaim.

As noted above, the first issue is whether res ipsa lo quitur is applicable under the facts of this case. As has been repeatedly observed by this court, the res ipsa loquitur doctrine allows the trier of fact to draw an inference of negligence from circumstantial evidence. To avail itself of the doctrine, plaintiff (in our case, counterclaim-ant) must demonstrate that he was injured (1) in an occurrence that would not have occurred in the absence of negligence, (2) by an instrumentality or agency under the management or control of the defendant (here, counterdefendant), and (3) under circumstances indicating the injury was not due to any voluntary act or neglect on the part of the one claiming the doctrine. Kolakowski v. Voris (1980), 83 Ill. 2d 388, 394; Spidle v. Steward (1980), 79 Ill. 2d 1, 5; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 448-49.

The dispute in this case centers on factors (2) and (3). With respect to factor (2), defendant argues that it is not required to establish “exclusive” control on the part of plaintiff. Rather, defendant asserts, only “control or management” must be demonstrated. Plaintiff contends that control and exclusive control mean the same thing. That meaning, according to plaintiff, is control from which it can be inferred that the negligence was not caused by someone other than himself. Plaintiff posits that in order to create this inference, he must have been in exclusive control at the time of the alleged negligence, regardless of which term is used.

It is true, as both parties point out, that this court has used both the term “exclusive control” and the term “management or control” in describing one of the necessary elements of res ipsa loquitur. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 394; Spidle v. Steward (1980), 79 Ill. 2d 1, 5; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 448-49.) The question of the degree of control necessary in a res ipsa loquitur case has been addressed in detail by Dean Prosser, who concludes:

“This element usually is stated as meaning that the defendant must be in ‘exclusive control’ of the instrumentality which has caused the accident. Such control of course does serve effectively to focus any negligence upon the defendant; but the strict and literal application of the formula has led some courts to ridiculous conclusions ***. Of course this is wrong: it loses sight of the real purpose of the reasoning process in an attempt to reduce it to a fixed, mechanical and rigid rule. ‘Control,’ if it is not to be pernicious and misleading, must be a very flexible term. It must be enough that the defendant has the right or power of control, and the opportunity to exercise it ***. It is enough that he is under a duty which he cannot delegate to another ***.” (Prosser, Torts sec. 39, at 219-20 (4th ed. 1971).)

Similarly, Restatement of Torts, Explanatory Notes sec. 328D, comment g, at 161 provides:

“Defendant’s exclusive control. The plaintiff may sustain this burden of proof with the aid of a second inference, based on a showing of some specific cause for the event which was within the defendant’s responsibility ***. Usually this is done by showing that a specific instrumentality which has caused the event, or all reasonably probable causes, were under the exclusive control of the defendant. Thus the responsibility of the defendant is proved by eliminating that of any other person.
It is not, however, necessary to the inference that the defendant have such exclusive control; and exclusive control is merely one way of proving his responsibility. He may be responsible, and the inference may be drawn against him, where he shares the control with another ***. He may be responsible where he is under a duty to the plaintiff which he cannot delegate to another ***. He may be responsible where he is under a duty to control the conduct of a third person ***. It may be enough that the defendant was formerly in control, at the time of the probable negligence ***. Exclusive control is merely one fact which establishes the responsibility of the defendant; and if it can be established otherwise, exclusive control is not essential to a res ipsa loquitur case. The essential question becomes one of whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against.”

As plaintiff asserts, the control that must be established is that necessary to support an inference that the defendant was negligent. However, as Prosser indicates, the requisite degree of control is not a rigid standard and, as comment g to section 328D of the Restatement explains, the key question is whether the probable cause is one which defendant was under a duty to the plaintiff to anticipate or guard against. This inquiry comports with the standard applied by this court in Kolakowski, a multiple-defendant, shared-control case, where we stated, “[T]he physicians and hospital, at the time of surgery, each owed an independent duty to the patient and exercised concurrent control over the operation and equipment.” (Emphasis added.) (83 Ill. 2d 388, 396.) When the plaintiff establishes the necessary control, the defendant, of course, may dispel the inference that it exercised the control necessary for res ipsa loquitur to apply. See Kolakowski v. Voris (1980), 83 Ill. 2d 388, 396-97.

In adopting a flexible standard of control, we note that res ipsa loquitur is simply a rule of evidence relating to the sufficiency of plaintiff’s proof. (Henderson & Pearson, The Torts Process 365 (1975).) If the three requisite factors are established, the doctrine simply gives rise to a permissible inference of negligence. It permits, but does not compel, the trier of fact to find that the defendant acted negligently. Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 349; Illinois Pattern Jury Instruction, Civil, No. 22.01 (2d ed. 1971); Henderson & Pearson, The Torts Process 364 (1975).

The question in the instant case with respect to control is whether plaintiff exerted sufficient control over the repair of the boring mill to permit an inference that he was negligent. This is not a multiple-defendant case like Kolakowski or Ybarra v. Spangard (1944), 25 Cal. 2d 486, 154 P.2d 687, where a joint-control theory was applied to hold defendants liable. Here, the factual question of control depends upon whether plaintiff, himself, exerted sufficient control over the boring mill despite the involvement of defendant’s employees. In this regard, defendant asserts that plaintiff clearly had supervision and control over the repairs performed on the mill. Plaintiff concedes that he exercised supervision and direction over defendant’s employees who helped with the repairs. Plaintiff claims, however, that defendant failed to prove that he was somehow responsible for the conduct of defendant’s employees and that, as a result, he did not have control over the boring mill sufficient for application of res ipsa loquitur.

The record reveals that plaintiff was an independent contractor who was hired by defendant to supervise the repair of the boring mill. Plaintiff testified that he agreed to perform the repairs in a workmanlike manner. Plaintiff stated that several of defendant’s employees under his supervision helped work on the mill in July through September 1976 and that plaintiff’s contractor, plus at least one of defendant’s employees, removed the gear-box cover just prior to his arrival and helped him work on the gear box in March 1977. Plaintiff testified on direct examination that he actually worked on the machine and that it was under his “supervision and control.” On cross-examination, plaintiff stated, “The only work that was performed that I wouldn’t have direct control over would be the work [on parts] that would be sent to the machine shop ***.” However, plaintiff testified that, upon the part’s return, he would supervise its assembly and placement into the boring mill. Plaintiff also declared that “[t]he assembly and the disassembly of the machine was under my control ***.” When later asked if the assembly and disassembly of the boring mill was “strictly” done under his supervision and control, plaintiff responded, “Yes, sir. That’s right. That’s correct.”

The damage to the boring mill occurred in the gear box, which all witnesses agreed was accessible only when the cast-iron cover was removed. The cover was off while plaintiff was supervising repairs between July and September 1976 and in March 1977. The shop superintendent testified that the cover was not removed between September 1976, when plaintiff finished repairs, and March 1977, when repairs recommenced. Nor was the cover removed after plaintiff completed repairs in March 1977 until the damage occurred. Finally, plaintiff testified that he personally inspected the gear box before the cover was replaced and supervised its replacement in September 1976 and March 1977. He also stated that he did not check the oil pan in the bottom portion of the gear box before replacing the cover in March.

Notwithstanding plaintiff’s argument that defendant’s workers assisting him were not his “employees,” the probable cause of the accident was one that plaintiff was under a duty to anticipate or guard against. Based upon plaintiff’s contractual obligation as well as the degree of supervision and control he actually exerted over the gear box at the time of the probable negligence, we conclude that plaintiff’s control was sufficiently established. Inasmuch as the record does not reveal that plaintiff presented sufficient evidence to dispel the inference of control on his part, the control requirement for application of res ipsa loquitur was properly demonstrated.

The third factor necessary for application of res ipsa loquitur is that the injury must not be due to action on the part of the claimant. Plaintiff argues that “it is just as reasonable to infer that a Precision employee was responsible for the foreign objects remaining in the gear box as it is to infer that Lynch was the cause.” Defendant argues that this contention is untenable inasmuch as plaintiff, alone, had control and supervision over all repairs in connection with the gear box and inspected the gear box prior to reassembly.

Here, the question of defendant’s contribution to the accident is allied to the existence of plaintiff’s control. (See Prosser, Torts sec. 39, at 224 (4th ed. 1971).) As discussed above, plaintiff admitted that the assembly and disassembly of the boring mill were strictly under Ms control. Additionally, plaintiff testified that defendant’s employees who helped Mm repair the mill were under Ms supervision. Further, even if one of defendant’s employees assisting in the repairs, wMch were under plaintiff’s control, left a tool in the gear box, plaintiff testified that before replacing the cover the gear box should always be checked. He stated that in September 1976 and March 1977 he inspected the inside of the gear box before replacing the cover and observed no foreign or unexpected material. However, plaintiff also testified that he saw no reason to inspect the oil pan area at the conclusion of the March repairs.

Thus, in light of plaintiff’s supervision and control over the gear-box repairs and over defendant’s employees, and in light of plaintiff’s inspection of the gear box prior to replacement of the cover, we believe defendant has sufficiently demonstrated that the injury was not attributable to its own negligence. We note that the above factors are not utilized to demonstrate negligent supervision on plaintiff’s part. Rather, these factors were employed to demonstrate plaintiff’s control over the instrumentality and the reduction of the likelihood that defendant was responsible for the damage. Based upon (1) plaintiff’s control, and (2) the elimination of defendant as a likely cause (along with the fact that the accident was due to negligence), the inference is created that plaintiff was negligent in Ms performance of the repair work, wMch included assembly and dis-assembly of the mill as well as final inspection of the gear box before replacement of the cover. Accordingly, we conclude that the necessary factors were established for application of res ipsa loquitur in the instant case.

Plaintiff next asserts that defendant failed to prove its “lost profits” in connection with a contract between defendant and Westvaco Corporation for repair of a front-end log loader. However, as defendant points out, count II of its counterclaim essentially sought compensation for sums it expended for additional labor and material to perform the previously contracted work which would not have been necessary had the boring mill been available.

As indicated at the outset, Clifford Browning, the shop superintendent for defendant in November 1977, testified that, with the boring mill out of commission, defendant’s employees had to engineer bars and portable units to complete the repairs on the Westvaco machine. Browning also testified that defendant was required to use 200 extra hours of machinist time at the rate of $16.50 per. hour — a total of $3,300. No testimony was presented to dispute these figures. The rule that findings of a trial court sitting without a jury will not be disturbed unless manifestly erroneous is applicable to an assessment of damages. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 149. See Illinois Structural Steel Corp. v. Pathman Construction Co. (1974), 23 Ill. App. 3d 1, 6-8; Board of Education v. United States Fidelity & Guaranty Co. (1969), 115 Ill. App. 2d 416, 430.) After examining the record, we conclude that the trial court’s judgment awarding defendant $3,300 in damages under count II is supported by sufficient evidence and should not be disturbed.

For the above-stated reasons, the portion of the appellate court judgment reversing the judgment for defendant on its counterclaim is reversed and the trial court judgment is affirmed in its entirety.

Appellate court affirmed in part and reversed in part; circuit court affirmed.


author: JUSTICE SIMON

text:
    (No. 55873.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM HOCKADAY, Appellee.

      Opinion filed December 17, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and James T. Teros, State’s Attorney, of Rock Island (Marcia L. Friedl and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, and John X. Breslin and Terry A. Mertel, of the State's Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Frank W. Ralph, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The issue here is the sufficiency of an information charging the defendant, William Hockaday, with the offense of forgery by delivery (Ill. Rev. Stat. 1979, ch. 38, par. 17—3(a)(2)). The challenged portion of the information reads:

“BILLY BOB HOCKADAY *** committed the offense of FORGERY, in that the said defendant, with the intent to defraud, knowingly delivered to Debbie Saylor a document apparently capable of defrauding another, in that it purported to have been made by another, Robert Owens and Tom Hanson, a copy of the document is attached and made a part hereof by reference thereto, said document being a check numbered 1633 of Energy Specialty Products, Inc., a corporation licensed to do business in the State of Illinois, drawn on the River Forest State Bank and Trust Company of River Forest, Illinois, dated March 12, 1980, payable to Stephanie A. Morrow in the amount of Four Hundred Seventy-five and no/100 Dollars ($475.00) and signed as maker Robert Owens and Tom Hanson, knowing the document to have been thus made, in violation of Section 17—3a2 of Chapter 38, Illinois Revised Statutes.” (Emphasis added.)

The defendant attacked the sufficiency of the information by several motions to dismiss or quash the information, all of which were denied. After a jury trial in Rock Island County, the defendant was found guilty of forgery by delivery and sentenced to two years’ imprisonment. On appeal, the appellate court reversed, concluding that the information did not sufficiently describe the elements of the forgery-by-delivery offense. 100 Ill. App. 3d 762.

Section 111—3(a)(3) of the Code of Criminal Procedure of 1963 provides that a charging instrument must set forth “the nature and elements of the offense charged.” (Ill. Rev. Stat. 1979, ch. 38, par. 111—3(a)(3).) When, as here, the defendant properly raises the issue of the sufficiency of the information in the trial court, the information must be scrutinized to determine whether it conforms to this statutory requirement. (See People v. Lutz (1978), 73 Ill. 2d 204.) If the information fails to properly set forth the elements of the offense charged, the trial court must grant the defendant’s motion to dismiss or motion in arrest of judgment. Ill. Rev. Stat. 1979, ch. 38, pars. 114—1(a)(8), 116—2(b)(1).

The appellate court in this case properly identified the five elements of the forgery-by-delivery offense as follows:

“(1) a document apparently capable of defrauding another; (2) a making or altering of such document by one person in such manner that it purports to have been made by another; (3) knowledge by defendant that it has been thus made; (4) knowing delivery of the document; and (5) intent to defraud.” (100 Ill. App. 3d 762, 765.)

It then held that the information was insufficient because it did not adequately set out elements (2) and (3).

The appellate court based this conclusion on its interpretation of the language in the information. The relevant language states that the “defendant *** delivered *** a document apparently capable of defrauding another, in that it purported to have been made by another *** knowing the document to have been thus made ***.” The appellate court interpreted the word “purported” to indicate that the check appeared to be made by another without charging that the check was falsely so made. Thus, the court concluded that the information failed both to describe the check as a forgery and to allege that the defendant knew of the check’s forged character. 100 Ill. App. 3d 762, 766.

We do not interpret the charging language as the appellate court did. “This court has consistently held that an indictment which charges an offense in the language of the statute is sufficient if the words of the statute particularize the offense so that an accused is apprised, with reasonable certainty, of the precise offense.” (People v. Banks (1979), 75 Ill. 2d 383, 392, citing People v. Dickerson (1975), 61 Ill. 2d 580, 582; People v. Mills (1968), 40 Ill. 2d 4, 11.) In this case the information closely follows the language of the statute that defines the offense of forgery by delivery.

Section 17 — 3(a) of the Criminal Code of 1961 provides:

“A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another ***; or
(2) Issues or delivers such document knowing it to have been thus made or altered ***.” Ill. Rev. Stat. 1979, ch. 38, par. 17—3(a).

The information in this case alleges that the defendant, “with the intent to defraud, knowingly delivered *** a document apparently capable of defrauding another, in that it purported to have been made by another, *** knowing the document to have been thus made.” The defendant argues that this language does not follow the language in the statute because the phrase “capable of defrauding another in that it purported to have been made by another” does not appear in the description of the offense of forgery by delivery described in section 17—3(a)(2). What this argument overlooks is that the definition of forgery by delivery in section 17—3(a)(2) makes no sense standing alone. It has to be read in connection with the definition of forgery set forth in section 17— 3(a)(1). “[S]uch document” in section 17—3(a)(2) thus refers to a “document apparently capable of defrauding another in such manner that it purports to have been made by another,” which is the kind of document described in section 17—3(a)(1). When this language is read as a part of section 17—3(a)(2) it is apparent that the information alleges each of the five elements of the forgery-by-delivery offense in almost the same language as the statute.

“An indictment which charges an offense in the language of the statute is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.” (People v. Patrick (1967), 38 Ill. 2d 255, 258.) In determining whether the forgery-by-delivery statute sufficiently particularizes that offense, a court must consider the plain and ordinary meaning of the statutory language used in the charging instrument as read and interpreted by a reasonable person. (See People v. Banks (1979), 75 Ill. 2d 383, 392-93.) We believe that the statutory language incorporated in the information in this case sufficiently advised the defendant of all the elements of the forgery-by-delivery offense. In particular it alleged that the check was forged and that the defendant knew of the forgery. See People v. Young (1974), 19 Ill. App. 3d 455, 457 (“the forgery statute does define — particularize—the elements of forgery — thus a charge which uses the same language is valid”).

In charging that the check “purported to have been made by another,” the information describes the type of fraudulent character that the check possessed. If the check were not a forgery, the defendant has not shown us how it would be capable of defrauding another in view of the fact that the information charged that “it purported to have been made by another.” A check may be capable of defrauding another for reasons other than forgery, insufficient funds for example, but that type of fraudulent document is not included within the language of this information. Although the word “purport” does not always imply a false appearance, that is certainly one of its common meanings (see Webster’s New World Dictionary 1154 (1976)) and when used to describe why a check is “capable of defrauding another” the word is sufficient to inform the defendant that the document was forged. See People v. Mager (1976), 35 Ill. App. 3d 306, 309 (“The indictment alleged that [the document] was '*** apparently capable of defrauding another in that it purported to have been made by another ***,’ i.e., that the [document] bore a forged signature”).

The information also sufficiently alleges that the defendant knew of the forgery when it states that he delivered the check “knowing the document to have been thus made.” The word “thus” refers to the language that we have already construed as meaning that the document was forged.

The information is sufficient. It follows the language of the statute that defines the forgery-by-delivery offense, and that statute sufficiently particularizes the offense so as to advise the defendant of the precise nature of the charges against him. We therefore reverse the judgment of the appellate court and affirm the judgment and sentence imposed by the circuit court.

Appellate court reversed; circuit court affirmed.