text:
    (Nos. 55923, 55971 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and Appellee, v. LARRY McCARTY, Appellee and Appellant.

      Opinion filed January 24, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gerry R. Arnold, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Peter A. Carusona, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for Larry McCarty.
   JUSTICE SIMON

delivered the opinion of the court:

This is a consolidated appeal from a decision of the appellate court reversing the revocation of defendant Larry McCarty’s probation by the circuit court of Kankakee County.

In December 1978 defendant was charged with felony theft and tampering with a motor vehicle in connection with allegations that he stole an automobile battery. The theft of the battery would ordinarily have been a Class A misdemeanor only (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(e)(1)), but the information charged defendant with Class 4 felony theft based on the theft statute’s recidivist provision (Ill. Rev. Stat. 1977, ch. 38, par. 16— 1(e)(1)). The charge was enhanced to a felony because of defendant’s conviction in Illinois in 1970 for armed robbery. Misdemeanor theft was not charged. The defendant did not challenge the enhancement of the theft charge at the time, but pleaded guilty to felony theft in exchange for dropping the charge of tampering with a motor vehicle. The circuit court of Kankakee County accepted defendant’s guilty plea on January 12, 1979, fined him $300, and sentenced him to 30 months’ probation. While on probation, however, he was charged with attempted retail theft of a package of cigarettes. He pleaded guilty to this charge without assistance of counsel and on October 16, 1980, was fined $50 and sentenced to three days in jail. Four days later, the State filed a petition to revoke defendant’s probation on the basis of his retail theft conviction. The circuit court heard evidence on this petition and on January 26, 1981, entered an order revoking defendant’s probation. A sentencing hearing was held, and on February 26, 1981, the court imposed a sentence of two years in prison.

On appeal, defendant contended that his sentence of imprisonment was void for two reasons: first, because robbery was not a “type of theft” that can be used to enhance a misdemeanor theft to a felony theft, thus rendering void the conviction for felony theft on which his probation was based, and second, because an uncounseled guilty plea could not be used to revoke a defendant’s probation. The appellate court held that robbery could be used to enhance a misdemeanor theft to a felony, and noted also that even if it could not be so used, defendant waived his right to object by not appealing his felony-theft conviction when that judgment was entered in January 1979. However, it agreed with defendant that his probation could not be revoked on the basis of a guilty plea entered without the assistance of counsel absent a knowing waiver of the right to counsel, which the record, silent as to such a waiver, did not reveal. The court remanded the cause accordingly. (101 Ill. App. 3d 355.) Both sides filed petitions for leave to appeal, defendant seeking to void his sentence of probation as well as the sentence of imprisonment. Both petitions were allowed.

The enhancement provision of the Illinois theft statute reads:

“(e) Sentence.
(1) Theft of property, other than a firearm, not from the person and not exceeding $150 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(e)(1).)

To be eligible for enhancement to a felony, a misdemeanor theft must occur after the defendant has been convicted of “any type of theft.” Theft, like all crimes recognized by the law of this State, is a term of art which is specifically defined by a statute (see, e.g., section 1 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 1 — 3)).

Part C of title III of the Criminal Code of 1961 covers various enumerated “Offenses Directed Against Property.” Article 16 under part C, which is entitled “Theft and Related Offenses,” defines various types of theft along with article 16A, which defines retail theft. The enhancement provision involved in this case appears in article 16. Deception, robbery, burglary, arson, damage and trespass to property, residential picketing, and interference with a public institution of higher education, all offenses against property, are defined in sections of part C subsequent to those entitled theft (see articles 17 through 21 and articles 21.1 and 21.2). Article 16 defines theft as occurring when one “knowingly” obtains or exerts unauthorized control over property of the owner, obtains control of such property by deception or by threat, or obtains control of property which he knows to be stolen and intends to keep from its owner. Article 18 defines robbery as occurring when one “takes property from the person or presence of another by the use of force or by threatening the imminent use of force” (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 1); armed robbery, the initial crime in this case, is the commission of robbery while “armed with a dangerous weapon” (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2). Theft and robbery are defined in two different articles of the “Offenses Directed Against Property” section of the Criminal Code of 1961, and they are two different crimes as defined. Theft requires knowledge that the taking is unauthorized and an intent to permanently deprive the owner of the use or benefit of the property (e.g., People v. Hargrave (1975), 29 Ill. App. 3d 89; People v. Wilson (1974), 23 Ill. App. 3d 457, 460), while robbery requires no similar showing of intent (People v. Banks (1979), 75 Ill. 2d 383, 388-92; People v. Tyllas (1981), 96 Ill. App. 3d 1, 3). The essence of the one crime is not the essence of the other: theft is an intended, unauthorized deprivation of the benefit or use of property, while robbery is the use of force in the taking of property, regardless of intent or the anticipated duration of the taking.

Further support for the view that the Criminal Code of 1961 does not include robbery as a “type of theft” emerges from the committee comments to article 16. These reveal that article 16 was meant to place under one heading the various offenses against property which were essentially so similar that their coexistence served only to confuse litigants.

“Formerly, in Illinois, there were some seventy-four separate sections which dealt in one form or another with the obtaining of property of another with the intent to permanently deprive such other or the true owner of the property or its beneficial use. All lawyers and judges are too familiar with the highly technical differences between larceny, larceny by trick, embezzlement, false pretenses, confidence game, and the many variations to require detailed comment. Suffice to say that, with the exception of robbery, burglary, arson, and criminal damage and trespass to property, which are covered respectively in Articles 18, 19, 20 and 21, the Committee intended to codify the entire range of offenses against property into Articles 16 and 17, and to abolish completely the labels and highly technical distinctions which had developed through centuries of case law and statutory amendments. ***
Because of the special characteristics of the stolen commodity, and the practical problems of knowledge and intent involved, the theft of lost or mislaid property, and of labor, services or the use of property, are dealt with separately in sections 16 — 2 and 16 — 3. However, it should be noted that these offenses are also Theft.
All other forms of theft are included in section 16 — 1 except the special deceptive practices proscribed by Article 17.” (Emphasis added.) (Ill. Ann. Stat., ch. 38, art. 16, Committee Comments, at 18 (Smith-Hurd 1977).)

Thus while theft and robbery have the common element of a wrongful taking of property and may be viewed by laymen as different forms of the same crime, “robbery” as defined by the legislature is not a “type of theft,” but a separate crime against property. To construe robbery as a “type of theft” for the purposes of enhancement under section 16 — 1(e)(1) would ignore this definition and the various cases mentioned earlier, which view robbery and theft as involving different states of mind. At the very least, it would violate the principle that ambiguities in penal statutes, particularly in the case of enhancement provisions, must be resolved in favor of the defendant (People v. Hobbs (1981), 86 Ill. 2d 242; People v. Haron (1981), 85 Ill. 2d 261, 277-78; People v. Lund (1943), 382 Ill. 213, 215-16; People v. Carlock (1981), 102 Ill. App. 3d 1100).

We acknowledge that Hlinois courts have held that robbery is a “type of theft” for purposes of the enhancement provision of section 16 — 1(e)(1) of the Criminal Code of 1961. In People v. Ferrara (1969), 111 Ill. App. 2d 472, cert. denied (1970), 398 U.S. 927, 26 L. Ed. 2d 89, 90 S. Ct. 1815, the appellate court held that robbery was an enhancing crime of theft inasmuch as it was viewed as an aggravated form of theft and “may also” be regarded as a crime of which theft is a lesser included offense (111 Ill. App. 2d 472, 479). However, the continuing validity of Ferrara is questionable in light of subsequent developments in the law. Theft is not generally viewed as a lesser included offense of robbery in this State. (See People v. Kimble (1980), 90 Ill. App. 3d 999 (stressing the fact that a person without the required mental state can be guilty of robbery but not of theft); People v. Baker (1979), 72 Ill. App. 3d 682; People v. Yanders (1975), 32 Ill. App. 3d 599; contra, People v. Romo (1980), 85 Ill. App. 3d 886; People v. Beck (1976), 42 Ill. App. 3d 923.) More importantly, People v. Banks (1979), 75 Ill. 2d 383, decided by this court 10 years after Ferrara, culminated a period of uncertainty as to the mental state required for robbery. (See, e.g., People v. Berlin (1971), 132 Ill. App. 2d 697 (specific intent not an element of robbery); People v. Marshall (1968), 96 Ill. App. 2d 124 (same); People v. Bray (1964), 52 Ill. App. 2d 384 (same); contra, People v. White (1977), 67 Ill. 2d 107 (intent to deprive is an element of robbery); People v. Howell (1973), 11 Ill. App. 3d 391, 393 (same); People v. Ware (1961), 23 Ill. 2d 59 (“felonious” intent is required for robbery).) People v. White, the first case in this court to address the question of whether robbery as defined by the Criminal Code of 1961 required the specific intent to deprive the owner or possessor of property, held that it did. Two years later, this holding was overruled in People v. Banks (1979), 75 Ill. 2d 383, 392; the rule of the Banks case is that the State need not show intent to deprive in prosecuting for robbery, as it must in prosecuting for theft. Had the definitive pronouncement of Banks been available to the court in Ferrara, that court could not plausibly have concluded that robbery is a “type of theft,” aggravated or otherwise. We therefore conclude that the appellate court erred insofar as it held, relying upon Ferrara, that robbery is an aggravated form of theft capable of enhancing a misdemeanor theft to a felony.

The State argues that it is anomalous for a recidivist statute to use crimes such as larceny and retail theft for enhancement purposes but ignore “more serious” crimes such as armed robbery. To the contrary, we find nothing strange in such a scheme. The legislature may very well have considered repeat offenders whose crimes increase in seriousness or are simply repeated to be more of a threat to society than offenders whose crimes become less serious or less violent with time. Although the legislature could rationally have held a different view, a court’s power is limited to interpreting the effect of the recidivist provision as it is written; it should not rewrite it to include what is not in it. See, e.g., People v. Haron (1981), 85 Ill. 2d 261, 266-68; People v. Lund (1943), 382 Ill. 213, 215-16; Belfield v. Coop (1956), 8 Ill. 2d 293, 307.

The State contends, and the appellate court held, that even if armed robbery is not a “type of theft” for enhancement purposes, defendant waived his right to raise that point in this proceeding by his failure to object to the sentence for felony theft when it was imposed (People v. Stueve (1977), 66 Ill. 2d 174). The Stueve line of cases recognizes that certain irregularities at trial or sentencing are not waived by failure to object in timely or procedurally correct fashion. (See, e.g., People v. Roberts (1979), 75 Ill. 2d 1, 11 (citing Supreme Court Rule 451(c) (73 Ill. 2d R. 451(c)), which provides that “substantial defects [in jury instructions in criminal cases] are not waived by failure to make timely objections thereto if the interests of justice require”); People v. Pickett (1973), 54 Ill. 2d 280, 283 (court may consider errors not properly preserved for review if the evidence is closely balanced).) In Stueve the court ruled that since the question of the propriety of two judgments entered by the trial court had not been properly presented to the appellate court, that court could not review them “unless they were void” (66 Ill. 2d 174, 178). Recent decisions of this court have held to be void, and hence not waived by failure to object in proper fashion, a conviction that occurred pursuant to a statute later ruled unconstitutional (People v. Wagner (1982), 89 Ill. 2d 308, 311), an order of probation which did not specify the duration of the probation (In re T.E. (1981), 85 Ill. 2d 326), and an order of supervision which failed to specify its duration (In re R.R. (1982), 92 Ill. 2d 423). See also People v. Edge (1950), 406 Ill. 490 (conviction based on indictment which failed to allege facts sufficient to charge any offense at all held void).

The basis for the plain-error holdings in Wagner, T.E., R.R., and Edge was that a conviction or an order significantly restricting the liberty of a defendant must have statutory authorization and is a nullity otherwise. (See, e.g., In re T.E. (1981), 85 Ill. 2d 326, 336.) In this case the existence of statutory authority for a conviction for felony theft depended on whether armed robbery is an enhancing crime of theft under section 16 — 1(e)(1) of the Criminal Code of 1961. Since we hold that it is not, this case falls within the rule of Wagner, T.E., R.R., and Edge. The sentence of probation based on a charge of felony theft was void and could be attacked collaterally, as in those cases.

The State maintains that defendant nonetheless waived his defense to the felony-theft charge because he voluntarily and intelligently pleaded guilty to the charge and received the dismissal of a second, misdemeanor count as the benefit of his bargain. It cites People v. Stanley (1972), 50 Ill. 2d 320, for the proposition that a voluntary guilty plea waives all irregularities in the information, conviction, or sentencing that are not jurisdictional in nature, and People v. Bettice (1975), 34 Ill. App. 3d 689, and People ex rel. Bassin v. Isreal (1975), 31 Ill. App. 3d 744, for the rule that a defendant who enters a negotiated guilty plea loses the power to attack the charge to which he has pleaded guilty once he receives the benefit of his bargain.

Perhaps, as the State suggests, there is nothing jurisdictionally deficient about a judgment of conviction which is entered despite the failure of the information or indictment to allege all the elements of the offense charged where the same offense could have been validly charged on the facts alleged and all that remained for the State to do was to specify the details of the accusation. (See People v. Rege (1976), 64 Ill. 2d 473, 478; People v. Gilmore (1976), 63 Ill. 2d 23, 26; but see People v. Barker (1980), 83 Ill. 2d 319, 333, 339 (Moran, J., dissenting); People v. Pankey (1983), 94 Ill. 2d 12, 20 (Moran, J., specially concurring).) However, that is not the issue before us. There can be no doubt that jurisdiction is lacking where the circumstances alleged do not constitute the offense charged as it is defined in the statute and nothing short of alleging entirely different facts could cure the defect. In this case nothing the State could have changed in the technical wording of the information would have produced a valid charge of felony theft. A conviction entered in such a case exceeds the statutory and constitutional authority which determine the subject matter jurisdiction of a court in a criminal case. (See Ill. Rev. Stat. 1977, ch. 38, par. 1 — 5(a) (a person is subject to prosecution for an “offense” which he commits within the State); Ill. Rev. Stat. 1977, ch. 38, par. 1 — 3 (no conduct except criminal contempt constitutes an offense unless it is described as such in a statute of this State); People v. Gilmore (1976), 63 Ill. 2d 23, 26-27.) Subject matter jurisdiction cannot be conferred by a guilty plea if it does not otherwise exist.

The guilty plea must confess some punishable offense to form the basis of a sentence. “ ‘The effect of a plea of guilty is a record admission of whatever is well alleged in the indictment. If the latter is insufficient [the plea] confesses nothing.’ ” Klawanski v. People (1905), 218 Ill. 481, 484; see also People v. Gregory (1974), 59 Ill. 2d 111, 112; People v. Wallace (1974), 57 Ill. 2d 285, 288; People v. Furman (1962), 26 Ill. 2d 334, 335; People v. Nickols (1945), 391 Ill. 565, 570-71.

Again, we stress that the error complained of here is not a procedural irregularity, as in Gilmore, Stanley, and People v. Brown (1969), 41 Ill. 2d 503, but an error of law by the trial court involving the substantive reach of the criminal statute invoked in the information. The record reveals that the trial judge informed the defendant that he had found a factual basis for the felony-theft charge, and that in a colloquy the defense counsel informed the trial judge that, because of the judge’s ruling in another case, he was satisfied that any challenge to using robbery as an enhancing offense for theft would be unsuccessful. Nowhere did the trial judge appear to question whether there was a factual basis for the statutory charge, as “substantial compliance” with Supreme Court Rule 402(c) (73 Ill. 2d R. 402(c)) demands. The fact that robbery is set forth in a different section from theft and the enhancement provision which is a part of the theft section should have put him on notice that at the very least there was an ambiguity in the enhancement provision which would have to be resolved in defendant’s favor. Failure to make any such inquiry as to the legal basis for the charge was an error affecting substantial rights of the defendant, and it should remain open for review. 73 Ill. 2d R. 615(a).

For similar reasons, we cannot say that because defendant has received the “benefit” of his plea bargain he has forfeited his right to challenge the legal foundation of the charge to which he pleaded guilty. Negotiations between the State and a defendant cannot confer jurisdiction where none exists, as we have already noted, even though the defendant may gain some advantage from those negotiations. In In re T.E. we held that where original probation orders are void, they “are subject to collateral attack in a later appeal from the order of revocation.” (85 Ill. 2d 326, 335.) It is our opinion that defendants have the right to raise collaterally, at least in appeals from orders revoking probation, the question of the propriety of the order of probation when it was imposed on a guilty plea which was accepted because of a mistake of law on the part of the trial judge as to the basis of the charge to be admitted.

Since defendant could not have been convicted of felony theft for taking the automobile battery, the order of probation based on the conviction was void; the two-year prison sentence based on revocation of this probation was likewise of no effect. In re R.R. (1982), 92 Ill. 2d 423, 430; People v. Williams (1981), 87 Ill. 2d 161, 167.

Accordingly, the appellate court is affirmed insofar as it reversed the circuit court. In view of our conclusions, we need not consider whether defendant was denied the right to counsel, and no remand to the circuit court is necessary. The appellate court is reversed insofar as it remanded the cause. The judgment of the circuit court is reversed.

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


source: Caselaw Access Project

author: JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 57042.
    THE PEOPLE ex rel. RICHARD M. DALEY, State’s Attorney, Petitioner, v. MATTHEW J. MORAN, Judge, et al., Respondents.

      Opinion filed January 4, 1983.

    Rehearing denied January 27, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry, and Randall E. Roberts, Assistant State’s Attorneys, of counsel), for petitioner.
    Theodore A. Gottfried, State Appellate Defender, and Robert E. Davison, Assistant Appellate Defender, of Springfield, for respondents.
   JUSTICE UNDERWOOD

In this original action, the State’s Attorney of Cook County seeks the issuance of a writ of mandamus, or in the alternative a supervisory order, directing Associate Judge Matthew J. Moran of the circuit court of Cook County (respondent) to expunge certain orders entered pursuant to the guilty pleas of three defendants which he had accepted, over the objection of the State, in two unrelated cases.

On June 27, 1982, Johnnie and Charles Wilson were charged in a complaint for preliminary examination with aggravated battery. They allegedly struck a police officer in the head and upper body with a car jack. On July 9, the Wilsons appeared before respondent with their attorney. The complaining witness, Officer Willie Cochran, and an assistant State’s Attorney were also present. Apparently, judging from a comment by defense counsel, there had been no discussion between defense counsel and the State concerning a possible plea prior to this court appearance. Following a preliminary discussion in which defense counsel indicated to the court that defendants were requesting a conference on a possible plea, the parties met in chambers. There is no record of that proceeding, but respondent later stated that, during that conference, the assistant State’s Attorney had indicated that the State intended to file attempted-murder charges, and the court had offered to impose a sentence of two years’ probation and a term of 20 days in the House of Corrections on pleas of guilty to aggravated battery. It is clear from the record that the State voiced its opposition to this proposed disposition.

Following the in-chambers conference, defense counsel indicated that defendants were willing to plead guilty to aggravated battery, and the court instructed the assistant State’s Attorney to file an information charging that offense unless the State intended to file attempted-murder charges. When the assistant State’s Attorney indicated, in response to the court’s question, that the State did not intend to file additional charges at that time, the court directed the State to file the aggravated-battery information within 30 minutes or face a contempt charge.

Following a brief recess the assistant State’s Attorney informed the court that the State was respectfully refusing to file an information and was requesting a preliminary hearing on the aggravated-battery complaint. The court expressed a belief that the State’s position was motivated by disagreement with the sentence the judge intended to impose, that the prosecution was attempting to usurp the court’s sentencing powers; and that defendants, who were unable to post bond, would be prejudiced if the preliminary hearing were held since they could remain in custody for three or four months awaiting trial. The court then directed the clerk, over the State’s objection, to assign an information number to the case and thereafter accepted defendants’ guilty pleas to aggravated battery. The case was continued pending a presentence investigation, which the State had refused to waive.

On July 14, 1982, Arthur Hardison appeared before respondent pursuant to a complaint charging him with felony theft. The record is not entirely clear as to whether there had been plea discussions between the State and defense counsel, but it is clear that, if any discussion had occurred, no plea agreement had been reached between counsel. However, judging from the court’s comments, there had been a conference between the court and defense counsel concerning a possible plea, at which the State may have been present. The court stated that defendant expressed his intent to plead guilty “blindly,” and the State then again expressed its opposition. The assistant State’s Attorney sought to defend the State’s position by citing this court’s Rule 402 (85 Ill. 2d R. 402) regarding plea negotiations, the prohibition against the trial judge initiating plea discussions, and our opinions in People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, and People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, regarding prosecutorial discretion in charging an offense. The court stated that Rule 402 was not applicable because there had been no agreement between the State and defense counsel and eventually directed the clerk to assign an information number to the case.

After ascertaining that defendant intended to plead guilty, the court stated: “On a plea of guilty to that charge, pursuant to the agreement and the discussion here, the agreement being between the court and your counsel, who is pleading blindly at this time, the court would grant the defendant one year probation.” An officer was sworn pursuant to the court’s instruction and testified that he observed defendant take property from the person of Karen McCowski without her consent. The plea was entered and the case continued pending a presentence investigation. The proceedings in that case as well as the Wilsons’ have been stayed by this court pending resolution of this mandamus action, and we are informed that the defendants are at liberty on bond or recognizance pending our decision.

It is a familiar and firmly established principle that the State’s Attorney, as a member of the executive branch of government, is vested with exclusive discretion in the initiation and management of a criminal prosecution. (People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 150; People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 539; Ill. Rev. Stat. 1981, ch. 14, par. 5.) That discretion includes the decision whether to prosecute at all, as well as to choose which of several charges shall be brought. (People v. Pankey (1983), 94 Ill. 2d 12, 16; People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 539.) The Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111 — 2(a)) provides that “[a]ll prosecutions of felonies shall be by information or by indictment,” and that “[n]o prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109 — 3 and at that hearing probable cause to believe the defendant committed an offense was found.” An information, of course, is a formal presentation of a criminal charge against a defendant by the People’s representative: the State’s Attorney. (People v. Gahagan (1938), 368 Ill. 475, 478; Ill. Ann. Stat., ch. 38, par. 111 — 1, Committee Comments, at 321 (Smith-Hurd 1980).) It “shall be signed by the State’s Attorney and sworn to by him or another.” (Ill. Rev. Stat. 1981, ch. 38, par. 111 — 3(b).) No authority is cited and we have found none authorizing a trial judge to order the State to file an information, or to file that charge on the court’s own motion upon the State’s Attorney’s refusal to do so.

We consider such action by a trial judge to be an impermissible exercise by the judicial branch of powers belonging exclusively to the executive and in direct contravention of the applicable statutory mandates. (Ill. Const. 1970, art. II, sec. 1; Ill. Rev. Stat. 1981, ch. 14, par. 5; Ill. Rev. Stat. 1981, ch. 38, par. 111.) A trial judge cannot, consistent with the constitutional principle of separation of powers, assume the role of prosecutor and determine which criminal offense shall be charged and thereafter proceed with disposition of that offense over the State’s objection, and the court had no authority to direct that the information be filed and then accept the guilty pleas thereto. (People ex rel. Elliott v. Covelli (1953), 415 Ill. 79; People v. Deems (1980), 81 Ill. 2d 384; People v. Pankey (1983), 94 Ill. 2d 12.) Mandamus will therefore issue to compel respondent to expunge those orders and to follow the statutory provisions. People ex rel. Carey v. Rosin (1979), 75 Ill. 2d 151; People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531.

The Wilsons’ case involves other arguments requiring separate consideration. The State asserts that it was and continues to be the intention of the State’s Attorney to file additional charges against the Wilsons, and that the court’s actions effectively precluded the State from exercising its power to charge more serious offenses carrying greater punishments. Respondent disputes this factual allegation, urging that it is not supported by the record and, in any event, presents a question of fact, central to the resolution of this case, which precludes the issuance of a writ of mandamus. (See, e.g., Touhy v. State Board of Elections (1976), 62 Ill. 2d 303, 312 (if factual questions are present, mandamus is inappropriate).) We do not agree that a factual dispute exists. The record shows that the State had informed the court, at the time of the conference, of the State’s intention to file attempted-murder charges. When the assistant State’s Attorney subsequently told the court that the State was not filing additional charges, it was in response to the court’s question: “Are you filing those additional charges, at this timeV (Emphasis added.) The response, “No, respectfully, we are not,” was accompanied by a request for a preliminary hearing on the pending complaint and a refusal of the court’s directive to file an information. This exchange, in our judgment, cannot fairly be construed as indicating the State did not intend to file additional charges following a preliminary hearing. This interpretation is strengthened by the fact that the State also then referred to our opinions holding that the decision to choose which of several charges shall be brought against a defendant is one within the exclusive discretion of the State’s Attorney.

Respondent further argues that the court properly denied the State’s request for a preliminary hearing because such a hearing would have served no legitimate purpose. The applicable statute provides:

“(b) If the defendant waives preliminary examination the judge shall hold him to answer and may, or on the demand of the prosecuting attorney shall, cause the witnesses for the State to he examined. After hearing testimony if it appears that there is not probable cause to believe the defendant guilty of any offense the judge shall discharge him.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, pars. 109 — 3(a), (b).)

Respondent urges that the word “shall” is not mandatory when considered in conjunction with the purposes of the preliminary hearing which do not include enabling the State to determine if additional charges are warranted. See People v. Horton (1976), 65 Ill. 2d 413, 417 (the preliminary hearing is not intended to be a discovery proceeding).

In our judgment, it is clear from the language of the statute that the court is required to hold a preliminary hearing on the demand of the prosecuting attorney, notwithstanding a waiver by the defendant. While it is universally recognized that the primary purpose of the preliminary hearing is to determine whether there is probable cause to hold the accused for trial (Kamisar, LaFave & Israel, Modem Criminal Procedure 963 (5th ed. 1980); e.g., People v. Adams (1970), 46 Ill. 2d 200, 205, aff'd (1972), 405 U.S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916; People v. Bellanca (1972), 386 Mich. 708, 194 N.W.2d 863; Jones v. Superior Court (1971), 4 Cal. 3d 660, 667-68; 483 P.2d 1241, 1245, 94 Cal. Rptr. 289, 293; Thies v. State (1922), 178 Wis. 98, 102, 189 N.W. 539, 541), several collateral functions have frequently been acknowledged (e.g., State v. Pigg (1909), 80 Kan. 481, 103 P. 121; 21 Am. Jur. 2d Crim inal Law sec. 413, at 685 (1981); Ill. Ann. Stat., ch. 38, par. 109, Committee Comments, at 242 (Smith-Hurd 1980)), and in most jurisdictions the prosecuting attorney has a right to insist upon a preliminary hearing even if the defendant desires to waive his right thereto. (Kamisar, LaFave & Israel, Modern Criminal Procedure 966-67 (5th ed. 1980); 22 C.J.S. Criminal Law sec. 332, at 848 (1961); 21 Am. Jur. 2d Criminal Law sec. 415, at 687 (1981); see, e.g., Cal. Pen. C. A. sec. 860(3) (1971); State v. Boone (1975), 218 Kan. 482, 484, 543 P.2d 945, 948, citing State v. Pigg (1909), 80 Kan. 481, 483-84, 103 P. 121, 122; People v. Duncan (1972), 388 Mich. 489, 500-01, 201 N.W.2d 629, 633-34, quoting People v. Wilcox (1942), 303 Mich. 287, 295-96, 6 N.W.2d 518, 521, cert. denied (1943), 318 U.S. 783, 87 L. Ed. 1150, 63 S. Ct. 853; State v. Marchetti (1965), 247 La. 649, 664, 173 So. 2d 531, 536; see also Van Buren v. United States (D. Ind. 1888), 36 F. 77; Graham & Letwin, The Preliminary Hearings in Los Angeles: Some Field Findings and Legal-Policy Observations, 18 U.C.L.A. L. Rev. 635, 646-47 (1971) (the Los Angeles district attorney’s office rarely accepts a defense waiver of the preliminary hearing).) The committee comments, which are frequently utilized by this court in determining the legislative intent (e.g., People v. Manning (1979), 76 Ill. 2d 235, 240, and cases cited therein), lend support to our conclusion. “While the defendant may waive the preliminary examination, this does not prevent the state from introducing nor the judge from requiring, evidence to establish probable cause (see State v. Pigg, 81 Kan. 481, 103 P. 121, 18 Ann. Cas. 521 (1909)). Paragraph 109 — 3 so provides.” Ill. Ann. Stat., ch. 38, par. 109 — 3, Committee Comments, at 259 (Smith-Hurd 1980).

In Pigg the defendant was charged in a warrant with grand larceny. Following a preliminary hearing, to which defendant objected, an information was filed charging defendant with larceny from the person. Defendant appealed his subsequent conviction, arguing that his waiver of the preliminary examination precluded the magistrate from conducting one and urging that he should have been bound over to answer only the original charge. In rejecting this argument the Kansas Supreme Court discussed at some length an issue similar to ours. The court stated:

“We are aware of no law forbidding the practice, and certainly there is no good reason why a prosecuting attorney may not introduce evidence before the examining magistrate notwithstanding the accused has waived a preliminary examination. At the time the waiver is made the prosecutor may not have knowledge of facts that would authorize the filing of another complaint. It is apparent that the interests of justice will often require that some evidence be introduced by the state. The prosecutor may wish to make a preliminary investigation to learn the facts so that he may proceed intelligently in the subsequent prosecution of the case, or to preserve the testimony of a witness. It may become necessary, as in this case, to examine a witness in order to furnish a basis for requiring a recognizance for his appearance at the trial. Besides, the state has an interest and concern in the discharge of an accused person when there is no ground for believing him guilty.” 80 Kan. 481, 483-84, 103 P. 121, 122.

We note, too, that section 111 — 2(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111 — 2(f)) specifically authorizes the State, following a preliminary hearing at which probable cause is established, to proceed by information “for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.” This court in People v. Redmond (1977), 67 Ill. 2d 242, cert. denied (1978), 434 U.S. 1078, 55 L. Ed. 2d 785, 98 S. Ct. 1272, sustained the validity of that section, holding that our constitution did not require a probable-cause determination for each separate charge where the subsequently charged offense arose from the same transaction or conduct.

We recognize that respondent’s actions were apparently motivated by his concern that the State’s Attorney was usurping the court’s functions and a desire to avoid prejudice to defendants. The remedy was not, however, for the court to usurp the State’s Attorney’s prerogatives. It is the responsibility of the State’s Attorney as the representative of the People to evaluate the evidence and other pertinent factors to determine what offenses can and should properly be charged. (People v. Brooks (1976), 65 Ill. 2d 343, 349; People v. Rhodes (1967), 38 Ill. 2d 389, 396.) Where, as here, the assistant State’s Attorney informed the court that the State intended to file other charges and requested a preliminary hearing, we will not assume, absent more persuasive circumstances, that the State’s refusal to acquiesce in the guilty pleas to aggravated battery was designed solely to delay disposition of the case while defendants remained in custody.

For the reasons stated, the writ of mandamus will issue directing respondent to expunge the orders entered pursuant to the guilty pleas of Johnnie Wilson, Charles Wilson and Arthur Hardison and to proceed in a manner consistent herewith.

Writ awarded.


author: JUSTICE WARD

text:
    (No. 56817.
    PAUL P. GILL, County Clerk, et al., Appellees, v. JEFFERY C. MILLER, Director of Public Aid, et al., Appellants.

      Opinion filed January 24, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for the People.
    Leslie R. Landis, of Chicago, for intervenor-appellant Illinois Coalition Against Domestic Violence.
    Daniel D. Doyle, State’s Attorney, of Rockford (Patrick J. Winn, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE WARD

delivered the opinion of the court;

This appeal is from a summary judgment that the funding provisions of Public Act 82 — 645, “An Act in relation to domestic relations and domestic violence shelters and service programs” (Ill. Rev. Stat. 1981, ch. 40, par. 2401 et seq.) (hereafter the Act) are unconstitutional. The judgment was entered in the circuit court of Winnebago County following an action brought by Paul P. Gill, the county clerk of Winnebago County, and Ronald Kotche, the clerk of the circuit court of Winnebago County. Appeal was taken directly to this court under Rule 302(a) (73 Ill. 2d R. 302(a)) by Jeffery C. Miller, the Director of the Department of Public Aid, and the Illinois Coalition Against Domestic Violence, a not-for-profit corporation that the circuit court allowed to intervene.

The Governor signed the Act into law on September 24, 1981. It became effective on January 1, 1982. The Act provides that the Department of Public Aid (the Department) shall administer or provide for the administration of shelters and service programs for victims of domestic violence. The statute states that the Department shall provide for the funding of such shelters and programs from the Domestic Violence Shelter and Service Fund (the Fund).

The Act amended section 3 of “An Act to provide for the fees of the sheriff, recorder of deeds and county clerk in counties of the third class” (Ill. Rev. Stat. 1981, ch. 53, par. 73) and section 18 of “An Act concerning fees and salaries, and to classify the several counties of this state with reference thereto” (Ill. Rev. Stat. 1981, ch. 53, par. 35). These amendments increase by $10 the fees that are charged by county clerks for the issuance of marriage licenses, and provide that “$10 [of that fee] shall be paid into the *** Fund.” Too, the Act amended sections 27.1 and 27.2 of “An Act to revise the law in relation to clerks of courts” (Ill. Rev. Stat. 1981, ch. 25, pars. 27.1, 27.2) to provide that $5 of the $45 fee charged by circuit court clerks for the filing of a dissolution of marriage action “shall be paid into the *** Fund.”

The Act amended, too, section 1.2f of “An Act to revise the law in relation to county clerks” (Ill. Rev. Stat. 1981, ch. 35, par. 1.2f). The Act provides:

“Pursuant to ‘An Act in relation to domestic relations and domestic violence shelters and service programs’, enacted by the 82nd General Assembly, the county clerk shall deposit in the Domestic Violence Shelter and Service Fund, monthly by the 10th day of the month following, certain fees derived from marriage licenses and marriage dissolution cases.”

The Winnebago county officers brought this action on January 4, 1982, almost immediately after the Act took effect. Their complaint alleged that the Act was unconstitutional because it provided that “the county clerk shall deposit” the fees into the Fund. The officers pointed out that the Constitution of Illinois provides:

“Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.” (Emphasis added.) Ill. Const. 1970, art. VII, sec. 9(a).

The circuit court held the statute unconstitutional on May 28, 1982. Pursuant to an order entered by the circuit court, the plaintiffs, the circuit court clerk and the county clerk, have continued to collect the fees specified in the Act. By the court’s order, the portion of those fees which the Act directs to be paid into the Fund has been held in an escrow account pending this appeal.

After the court had held the Act to be unconstitutional, the legislature repealed the section that called for the county clerk to deposit the fees into the Fund. (Pub. Act 82 — 888, “An Act to amend ‘The Illinois Domestic Violence Act’, approved September 24, 1981, and other Acts herein named,” sec. 2 (eff. Aug. 5, 1982) (1982 Ill. Leg. Serv. 2021 (West)).) In its place, the legislature added section 3.1 to the Act (to be codified as Ill. Rev. Stat., ch. 40, par. 2403.1). The new section provides:

“Each circuit and county clerk shall deposit with the county treasurer, in accordance with Section 2 of ‘An Act to provide for the timely deposit of fees collected pursuant to law by any elected or appointed official of local government’, approved September 1, 1972, all fees or portions of fees collected pursuant to law, which are designated for payment into the Domestic Violence Shelter and Service Fund. The county treasurer shall, monthly, by the 10th day of the month following receipt, remit the amounts so deposited to the State Treasurer, who shall deposit such amounts into the Domestic Violence Shelter and Service Fund in the State treasury.” Pub. Act 82— 888, sec. 2.

The amendment was approved on August 5, 1982, and took effect from that date. Involved here is the disposition to be made of the moneys collected between the effective date of the Act and the effective date of the amendment.

It is fundamental that in construing a statute a court is to ascertain and give effect to the legislature’s intent. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 369.) It will be presumed that in enacting a statute the legislature acted in the light of the provisions of the Constitution and intended to enact a statute not inconsistent with the Constitution. (Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 561 cert. denied (1967), 389 U.S. 848, 19 L. Ed. 2d 117, 88 S. Ct. 75.) Accordingly, we must construe the Act here as not offending the Constitution, provided of course that the construction is reasonable. Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 389.

In ascertaining the legislature’s intent we should consider the statute in its entirety, noting the subject it addresses and the legislature’s apparent objective in enacting it. (Chastek v. Anderson (1981), 83 Ill. 2d 502, 510-11.) Where the letter of the statute conflicts with the spirit of it, the spirit will be controlling when construing the statute’s provisions. (Inskip v. Board of Trustees (1962), 26 Ill. 2d 501, 510.)

Considering these principles of construction, we judge that Public Act 82 — 645 is constitutional. Undoubtedly the provision that the county clerk rather than the county treasurer should deposit the fees was simply a legislative inadvertence or mistake. The Act requires the circuit court clerk, not the county clerk, to collect the fees for the filing of petitions in dissolution-of-marriage cases. The General Assembly certainly did not intend that the county clerk was to deposit fees that the Act provided that the circuit court clerk would charge and collect.

Also, the legislature was certainly aware of our constitution and its requirement that fees collected in the operation of a unit of local government (here, the county) shall be deposited with the unit’s treasurer. To implement that constitutional requirement, another statute, “An Act to provide for the timely deposit of fees collected pursuant to law by any elected or appointed official of local government” (Ill. Rev. Stat. 1981, ch. 85, pars. 721, 722), provides: “All elected or appointed officials of units of local government, and clerks of the circuit courts, authorized by law to collect fees which collection is not prohibited by Section 9 of Article VII of the Constitution, shall deposit all such collected fees upon receipt with the county treasurer or treasurer of such other unit of local government, as the case may be; except that such officials may maintain over-payments, tax redemptions, trust funds and special funds as provided for by law or local ordinance.”

The legislature’s intent, we must presume, was to enact a constitutional statute, and it is also presumed that the legislature was aware of the statute we have just quoted when it provided the Act’s funding details. We therefore construe the Act, as originally drafted, to have required that the county treasurer, the constitutionally designated officer, was to deposit the specified portion of the fees into the Fund. We construe that act to have meant that the circuit court clerk and the county clerk were to have deposited the fees with the county treasurer.

Evidence that this construction expresses the legislature’s intent can be found in the amendment to the Act, which was approved about seven months after the Act took effect. The amendment provides that the county clerk and the circuit court clerk shall deposit the fees collected with the county treasurer, and that the county treasurer then shall transfer those moneys to the State Treasurer for deposit into the Fund. Regarding the significance of an amendment to a statute, Sutherland on Statutory Construction states: “If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act — a formal change — rebutting the presumption of substantial change [of the original act by the amendment].” (1A A. Sutherland, Statutory Construction sec. 22.31 (4th ed. 1972).) Cf. Carey v. Elrod (1971), 49 Ill. 2d 464 appeal dismissed (1972), 408 U.S. 901, 33 L. Ed. 2d 327, 92 S. Ct. 2488 (upon concluding that it was through oversight that the legislature, in amending a statute, had deleted a certain provision in the statute, the court deemed it proper in interpreting the amended statute to consider that when the legislature became aware of the deletion, it amended the statute again to restore the deleted provision).

We have here a situation where a legislative intention, otherwise clear, was in part mistakenly or inaccurately stated. Under such circumstances courts have allowed the substitution of language in order to carry out the demonstrable legislative intention, observing, however, when doing so, that this technique of construction is to be exercised with caution. Sutherland on Statutory Construction observes: “A large majority of the cases permit the substitution of one word for another where it is necessary to carry out the legislative intent or express clearly manifested meaning. Although, as one court said, ‘it is sometimes called “exceptional construction,” and we are not unmindful of the dangers attending the exercise of such powers by the courts. But, properly understood, and exercised with due caution, it is not judicial legislation, but is simply a method of arriving at legislative intent defectively expressed.’ ” (2A A. Sutherland, Statutory Construction sec. 47.36 (4th ed. 1973), quoting Baca v. Board of County Commissioners (1900), 10 N.M. 438, 442-43, 62 P. 979, 980.) The text further states: “Courts have permitted the substitution of one word for another: where it is necessary to make the act harmonious or to avoid repugnancy or inconsistency, [or] where the word to be substituted is to be found in the *** act as amended *** or by reference to other statutes, [or] where it is obvious that the word used in the act is the result of clerical error, or mistake, [or] where the substitution will make the act sensible, or give it force and effect.” 2A A. Sutherland, Statutory Construction sec. 47.36 (4th ed. (1973).

Adhering to the holdings in the majority of jurisdictions, this court has decided that where applying language literally in a clause of an otherwise coherent statute would frustrate the spirit of the statute and the intent of the legislature, language may be disregarded, modified or supplied to give effect to the legislative design. Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 395; e.g., People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305 (where through oversight the legislature, in amending the Election Code, failed to provide for the continuation of a long-standing procedure for the erasure of names from the voters’ register, the court construed the amendment as continuing the procedure); People ex rel. Barrett v. Anderson (1947), 398 Ill. 480 (cited by 2A A. Sutherland, Statutory Construction sec. 47.36 (4th ed. 1973)) (the description of territory in the Congressional Reapportionment Act of 1947 as “the village of Stickney” was contraed to mean “the township of Stickney,” because a literal reading would have brought about the unintended result of leaving unapportioned the part of the township that was outside of the village).

An opinion given by the Attorney General on December 22, 1981, prior to the effective date of the Act, is in agreement with our construction of the statute. 1981 Ill. Att’y Gen. Op. 113.

For the reasons given, the judgment of the circuit court holding Public Act 82 — 645 unconstitutional is reversed. The cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    (No. 56289
    LISTEMAN, BANDY & HAMILTON ASSOCIATION, Appellee, v. ELIZABETH SUE SWAN WILSON et al. — (Linda Barriger, Ex’r, Appellant).

      Opinion filed January 24, 1983.

      Joseph B. McDonnell, of Churchill, Nester & McDonnell, of Belleville, for appellant.
    John B. Gunn and James C. Cook, of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Listeman, Bandy & Hamilton, a professional corporation licensed to practice law, instituted this interpleader action in the circuit court of St. Clair County, joining as defendants Elizabeth Sue Swan Wilson and Linda Barriger, executrix of the estate of Charles J. Swan. The complaint sought a determination as to which defendant was entitled to a disputed portion of the proceeds received by plaintiff in settlement of a personal injury suit filed on behalf of defendant Mrs. Wilson. The appellate court affirmed the judgment of the trial court awarding the disputed sum to her (103 Ill. App. 3d 87), and we granted Linda Barriger’s petition for leave to appeal.

Mrs. Wilson, who had married Charles J. Swan in 1966, obtained an uncontested judgment dissolving their marriage on September 20, 1978. That judgment provided, concerning the potential proceeds of a personal injury lawsuit instituted by Mrs. Wilson against Venture Stores during her marriage to Charles J. Swan, as follows:

“IT IS FURTHER ORDERED that with reference to the matter of Elizabeth Swan vs. Venture (No. 78-L-645), upon a verdict, settlement and recovery, the proceeds will be divided equally between the petitioner [Mrs. Wilson] and respondent [Charles J. Swan] if the respondent is living.”

During the dissolution proceeding, Mrs. Wilson had testified that she wanted to share her recovery with Charles J. Swan, but only if he was living, since she did not wish the money to go into his estate.

Attorney Charles Hamilton, a partner in the plaintiff firm, represented Mrs. Wilson in her personal injury action. On April 22, 1980, she authorized him to accept a settlement offer of $30,000 from Venture Stores, and on May 2, he received a check for that amount drawn by Venture Stores’ insurer, Liberty Mutual Insurance Company, naming both the law firm and Mrs. Wilson as joint payees. Plaintiff’s secretary notified her that the settlement check and related documents had arrived. Mrs. Wilson went to plaintiff’s office, endorsed the check and executed releases in favor of Venture Stores at approximately 10:30 a.m. on May 3. Charles J. Swan was the victim of an accidental shooting on the morning of that same day and he died at 1:15 p.m. Mr. Hamilton was informed of Mr. Swan’s death later in the afternoon and, although he had not read the provisions of the dissolution judgment order, he was aware that Mr. Swan was to receive one-half of the recovery if still living when Mrs. Wilson received it. Accordingly, after the settlement check “cleared” banking channels, plaintiff deducted its fees and costs which were due and gave Mrs. Wilson its check for $10,940.48, representing one-half of the net recovery. Both she and defendant Barriger, executrix of the estate of Charles J. Swan, subsequently claimed the other half of the net proceeds.

The parties agree that the dispositive issue in this cause is whether Mrs. Wilson received a settlement and recovery while Charles J. Swan was still alive. While it is undisputed that she reached a settlement agreement with Venture Stores, that fact alone does not resolve the issue, for the language of the order is that the division is to occur upon “verdict, settlement and recovery *** if the respondent [Charles Swan] is living.” We agree with the appellate court that the word “recovery” as used in the order of dissolution was ambiguous. This court has consistently held that “recovery” refers to actual proceeds from a judgment or settlement (see Donoho v. O’Connell’s, Inc. (1960), 18 Ill. 2d 432, 439, Standidge v. Chicago Rys. Co. (1912), 254 Ill. 524, 533-34), although it has recognized that the term may carry a different meaning in some circumstances. (Donoho v. O’Connell’s, Inc. (1960), 18 Ill. 2d 432, 439.) See also the definition of “recovery” in Ballentine’s Law Dictionary 1099 (1948 ed.).

Defendant Barriger, urging this court to consider Consolidated Freightways v. Industrial Com. (1971), 48 Ill. 2d 221, as controlling, argues that “recovery” should be construed here to mean “payment.” We consider Consolidated Freightways readily distinguishable. In that case, this court held that delivery of a check to the sole payee constituted a conditional payment which retroactively became unconditional when the instrument was paid by the drawee upon presentment. (48 Ill. 2d 221.) Unlike the situation in Consolidated Freightways, Mrs. Wilson was not the sole payee and could not negotiate the insurance check here without the endorsement of her co-payee, in whose possession the check remained. Ill. Rev. Stat. 1979, ch. 26, par. 3 — 116.

The conditional-payment rule is inapplicable in these circumstances since the Uniform Commercial Code provisions which form the basis of that rule govern only the rights and liabilities of the parties to a check. This limitation is expressly noted by the Uniform Commercial Code draftsmen in their official commentary:

“Subsection (3) is concerned with the rights and obligations as between the parties to a sales transaction when payment is made by check. This Article recognizes that the taking of a seemingly solvent party’s check is commercially normal and proper and, if due diligence is exercised in collection, is not to be penalized in any way. The conditional character of the payment under this section refers only to the effect of the transaction ‘as between the parties’ thereto ***.” Ill. Ann. Stat., ch. 26, par. 2 — 511, Uniform Commercial Code Comment, at 402 (Smith-Hurd 1963). See also Ill. Ann. Stat., ch. 26, par. 3 — 80-2, Uniform Commercial Code Comment (Smith-Hurd 1963).

Defendant Barriger’s contention that “recovery,” as used in the dissolution order, should be construed simply to mean “payment” is completely lacking in merit. Because the dissolution order was apparently drafted by defendant Wilson’s attorney, it is argued that we should strictly construe that document against Mrs. Wilson. While that rule of interpretation is appropriate in cases involving ambiguous contractual terms (see, e.g., Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105), it is inapplicable when we seek the meaning of a judicial decree, which is a pronouncement of the court and not the parties.

In light of the uncontested nature of the dissolution proceeding, it seems apparent that Mrs. Wilson’s testimony in that case has significant probative value in determining the trial judge’s intent. During the dissolution proceeding, Mrs. Wilson gave the following responses when questioned by her attorney:

“Q. Now, you have agreed with your husband that you will split any verdict, settlement or recovery of that case?
A. [claimant Wilson] Right.
Q. And isn’t it also a fact that we have talked about this in my office?
A. Right.
Q. And I advised you against doing this?
A. Right.
Q. And you still told me that you want to do it, is that correct?
A. That is right.
Q. And it was on your initiative that you decided that you would split the proceeds of that lawsuit with your husband?
A. Right. That is in the event that he is living at the time.
Q. Do you think there is some chance he might be dead?
A. No, but it is just the bunch that he lives with. He lives a dangerous life. He really does.
Q. Does he? Okay.
A. And I don’t want it to go into an estate, his estate or something like that. Do you understand what I am saying?”

That testimony indicates a desire on defendant Wilson’s part to share the potential proceeds of her lawsuit, but only on the condition that the money would go directly to her former husband and not to his estate. Nothing in the dissolution judgment indicates the trial judge intended otherwise. Under these circumstances, we are convinced that the use in the judgment order of the phrase “settlement and recovery” was intended to condition Charles Swan’s right to share the proceeds upon his living until those proceeds had actually come into Mrs. Wilson’s exclusive possession. Possession by her attorneys of a check payable to them and to her which they intended to deposit, await its payment and then deduct therefrom their fees and expenses before making any disbursement to her simply does not meet this requirement.

The appellate court’s judgment is accordingly affirmed.

Judgment affirmed.


text:
    (No. 56196.
    ALTHER LOCKETT, Adm’r, Appellant, v. BI-STATE TRANSIT AUTHORITY et al., Appellees.

      Opinion filed January 21, 1983.

      Jerome J. Schlichter and Jeanne Sathre, of Cohn, Carr, Korein, Kunin, Schlichter & Brennan, of East St. Louis, for appellant.
    James McGlynn and John D. Wendler, of McGlynn & McGlynn, of Belleville, for appellees.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, as administrator of the estate of Constance Hilliard (decedent), instituted this wrongful death action in the circuit court of St. Clair County against defendant, Bi-State Transit Authority, after Constance Hilliard died of injuries sustained when she was struck by defendant’s bus. Defendant’s driver, Claude E. Leslie, was also originally named as a defendant, but plaintiff dismissed the cause of action as to him prior to the jury trial at which plaintiff obtained a $250,000 verdict. A divided appellate court reversed and remanded for a new trial (102 Ill. App. 3d 1210), stating that a question posed by plaintiff’s counsel concerning defendant’s termination of Claude Leslie’s employment constituted a highly prejudicial violation of an in limine order. We subsequently granted plaintiff’s petition for leave to appeal.

The accident which resulted in decedent’s death occurred at approximately 5:30 p.m. on December 10, 1973, in the 1300 block of East Broadway in East St. Louis. Testimony at trial indicated that darkness had fallen, but that streetlights spaced along the north side of Broadway were lit; it was also undisputed that the headlamps and interior lights on defendant’s bus were lit and that the weather was clear, dry and cool. The record additionally establishes that Broadway was a four-lane street in the 1300 block, but that parked cars occupied the two outermost lanes, leaving only two lanes for moving traffic. Marked pedestrian crosswalks were provided at each end of the block, with a third crosswalk located approximately in the middle. Because there was an elementary school located at the west end of the block, at the corner of 13th and Broadway, the speed limit in the area was 20 miles per hour when children were present. Claude Leslie, who had frequently driven that bus route, testified that children were often present at that time of day, and that he considered himself bound by the 20-mile-per-hour speed limit. The evidence also showed that the headlamps and part of the windshield on the right side of the bus were shattered in the accident.

Although some of the facts concerning the accident were undisputed, witnesses differed in their accounts as to the actions of Constance Hilliard, the location of the impact, and the speed of the bus. Willie Lockett, who was unrelated to plaintiff and unacquainted with Constance Hilliard, testified that he was seated in a car parked on the north side of Broadway while waiting for a friend to come out of a store on the south side of Broadway. The mid-block crosswalk was farther down the street to the west of that parked car. He stated that Constance Hilliard, accompanied by a man whom he did not know, emerged from a store on the south side of the street and walked a short distance to the mid-block pedestrian crosswalk. Upon reaching the crosswalk, the man with Constance Hilliard turned back and she began to walk across the street after looking both ways. At that point, Willie Lockett stated that he looked back over his shoulder and spotted defendant’s bus approaching. He testified that the bus was traveling at about 35 miles per hour and that Constance Hilliard had nearly crossed the westbound lane when she was struck by the bus. In addition, he stated that the bus came to a stop 30 feet beyond the crosswalk.

Plaintiff also introduced the evidentiary deposition of Glennor Dabbs, a witness who had died prior to the trial. According to Mr. Dabbs, he had met Constance Hilliard as he was entering a shoeshine parlor on South 15th Street late in the afternoon on December 10, 1973, and acceded to her request to walk her partway home. They stopped briefly to warm up in a pool room and again in the Manhattan Club, located in the 1300 block of Broadway. Constance Hilliard lived in the Orr Weathers apartment complex across the street from the Manhattan Club, and when they left the club, Mr. Dabbs walked to the curbside with her. At that point, Mr. Dabbs spotted the bus approaching and said, “Here comes the bus.” Although he was holding onto her coat lapel, she pulled away from him and went into the street, and he turned away. Mr. Dabbs further testified that there was no crosswalk at the point where she entered the street. Although he did not actually see her crossing the street, Mr. Dabbs also stated that she must have run in front of the bus, because it had been only 50 yards away when he first saw it, and he heard the impact of the accident only a “split second” after she had left him. After stating that the speed limit was evidently 20 miles per hour and that the bus was not speeding, Mr. Dabbs admitted that he did not actually know what the speed limit was. He also stated, however, that the bus came to a halt immediately after the impact.

Claude Leslie, the bus driver, testified that he stopped at 14th Street to pick up Mrs. Hoffman and that he had only proceeded about 160 feet when the impact occurred. He declared that Mrs. Hilliard “come out of nowhere” and that he did not see her until she had already crossed in front of the bus to the extreme right side, about five inches from the bus. Mr. Leslie stated that the bus was traveling about 15 to 20 miles per hour when it struck her and that he was able to stop within a few inches after she was hit. When asked where the accident occurred in relation to the mid-block pedestrian crosswalk, Mr. Leslie indicated that the bus had not yet reached the crosswalk, which was 60 feet to the west. This response was supported by testimony from additional witnesses which indicated that the accident occurred before the bus reached the mid-block crosswalk.

Plaintiff’s original complaint consisted of two counts, charging defendant with negligent misconduct and wilful and wanton misconduct. Following a period of discovery, plaintiff amended the complaint by adding two counts alleging that defendant was guilty of negligent entrustment and wilful and wanton entrustment, and paragraph 6(g) in count II, alleging that defendant was guilty of wilful and wanton misconduct because it allowed Claude Leslie to drive the bus despite its knowledge of his prior “reckless driving and unsafe practices.” On defendant’s motion, the trial court dismissed counts III and IV on the grounds that they failed to state a cause of action. Although the court denied plaintiff’s motion for reconsideration, it did certify for interlocutory appeal the question as to whether count IV was properly dismissed, stating the issue as follows:

“Whether Count IV of Plaintiff’s Complaint, alleging in effect willful and wanton entrustment of defendant’s vehicle to its driver states a cause of action in a situation in which defendant does not deny agency?”

Plaintiff’s motion for an interlocutory appeal was denied by the appellate court.

Prior to trial, the court granted defendant’s motion in limine in an order purporting to bar evidence concerning both Claude Leslie’s company driving record prior to this accident, which was replete with instances of misconduct, and his employment history with defendant after the accident. While examining James Troupe, who was Claude Leslie’s supervisor at the time of the accident, plaintiff’s counsel asked when defendant terminated Mr. Leslie’s employment. That question was objected to before the witness answered, and the trial court instructed the jury to disregard it. Having determined that the question constituted a nonprejudicial violation of his order in limine, the trial judge denied defendant’s immediate motion for mistrial and also denied a post-trial motion for a new trial on that basis. It was this question which formed the basis for the appellate court’s remandment. Because the trial took place before this court’s decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, the court submitted two special interrogatories to the jury in order to determine if Constance Hilliard was guilty of contributory negligence and contributory wilful and wanton misconduct. The jury found her to be contributorily negligent but not guilty of contributory wilful and' wanton misconduct, and found defendant guilty of wilful and wanton misconduct.

Plaintiff contends here that the trial court’s in limine order was unjustified, and that, in any event, the limitations it purported to impose were too unclear to be enforceable. We agree on both counts.

The erroneous conclusion reached by the appellate court appears to stem from an overly broad application of the limitation adopted by our appellate court pertaining to the cause of action for negligent entrustment. (Neff v. Davenport Packing Co. (1971), 131 Ill. App. 2d 791.) Relying on Neff defendant argues that a cause of action for negligent entrustment does not lie where existence of an agency relationship between tortfeasor and principal is not denied. Neff, a pre-Alvis case, is inapposite here. Prior to Alvis v. Ribar (1981), 85 Ill. 2d 1, recovery under a negligent-entrustment theory was necessarily premised on an initial finding of negligent conduct by the tortfeasor coupled with nonnegligent behavior on the part of the plaintiff. Because the defendant-principal was only charged with the negligence of the tortfeasor agent, the sole purpose of allowing the cause of action was to create a chain of liability. When the defendant-principal acknowledged his responsibility for the alleged negligence of the tortfeasor-agent, however, no reason existed to allow the plaintiff to introduce proof of the negligence of the defendant-principal in the form of potentially inflammatory evidence concerning the defendant’s knowledge of prior misconduct on the part of the tortfeasor.

In cases involving wilful and wanton entrustment, however, the analysis necessarily differs from that of negligent entrustment. Unlike the situation in negligent-entrustment cases, where the misconduct of the defendant-principal is of the same level of culpability as that of the tortfeasoragent, defendants-principals may be found guilty of wilful and wanton misconduct even though the tortfeasors-agents to whom the instrumentality causing the injury was entrusted may have been only negligent. Furthermore, while contributory negligence by the plaintiffs would, prior to Alvis, bar recovery in actions for negligent entrustment, it would not preclude recovery when the defendants were guilty of wilful and wanton misconduct. Consequently, the necessity of proof of the defendant-principal’s misconduct in connection with wilful-and-wanton-entrustment actions is not eliminated simply because that party acknowledges an agency relationship with the tortfeasor.

Application of these principles to the case before us demonstrates the error we believe occurred. While counts III and IV of plaintiff’s complaint alleging negligent entrustment and wilful and wanton entrustment had been stricken on defendant’s motion as failing to state a cause of action, paragraph 6(g) of count II remained at the time of trial. Even though differently phrased, its substance was identical to count IV in that it alleged defendant was guilty of wilful and wanton misconduct because it continued to employ Claude Leslie as a bus driver despite its knowledge of his poor driving record. If he, as the driver of the bus in this case, had been only negligent in striking the decedent, the jury might still have considered defendant to be guilty of wilful and wanton misconduct because it had continued to permit him to drive. Obviously, proof of that record carried the potential of prejudicing the jury against defendant. That proof, however, was highly relevant, if not essential, to plaintiff’s case, and to preclude its use was, in practical effect, to abolish plaintiff’s cause of action for wilful and wanton misconduct whether labeled as entrustment in count IV or as in paragraph 6(g) of count II. An in limine order excluding proof of the bad driving record until evidence had been introduced from which the jury could find the bus driver negligent would perhaps have been appropriate, and defendant might well have been entitled to an instruction cautioning the jury that proof of the driving record was not to be considered in determining the nature of the driver’s conduct on this occasion. But to completely exclude proof of that record and all reference thereto was, in our opinion, impermissible.

Although we have not previously had occasion to address the propriety of actions for wilful and wanton entrustment, we approve of the recognition afforded that cause of action by our appellate court. (See, e.g., Giers v. Anten (1978), 68 Ill. App. 3d 535; Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959; Dyreson v. Hughes (1947), 333 Ill. App. 198. Accord, Hinson v. Dawson (1956), 244 N.C. 23, 92 S.E.2d 393. See also Breeding v. Massey (8th Cir. 1967), 378 F.2d 171.) Because defendant’s motion in limine operated to preclude plaintiff from introducing evidence necessary to sustain a valid and well-pleaded portion of her complaint, we consider the appellate court’s reversal, which was premised on a violation of the improper order in limine, to be erroneous.

As earlier noted, plaintiff also urges that the limitations imposed by the in limine order were impermissibly vague. We emphasized in Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 550, that clarity and an accurate understanding by all parties were essential to the validity of in limine order. Neither of those requirements was met here. Defendant’s oral motion for an in limine order followed an introductory statement, and was initially phrased as follows:

“Therefore, I would move to prohibit the plaintiff from introducing any records pertaining to this man’s [Claude Leslie’s] driving, either before or after this event. And, limit the testimony to those facts which took place on the occasion when this woman was fatally injured.”

During his response to plaintiff’s argument in opposition to the motion defense counsel stated:

“My motion is this. That the evidence and opening statements be restricted to that type of negligence or willfulness that occurred at the time and proximately caused the injuries and damages complained of. And that no other conduct unrelated to that type of conduct can become material.”

After further comments, defendant’s counsel then concluded by making the following request:

“So I ask the court to limit in opening statement any reference to prior conduct of the defendant’s driver or whatever became of this defendant’s driver after this accident unless there is a showing of similar behavior on that occasion in question.”

The court then allowed the motion, stating only, “As for this Motion In Limine, I will grant this motion.”

As we said in Reidelberger:

“The ability to restrict interrogation makes the in limine order a powerful weapon. This power, however, also makes it a potentially dangerous one. Before granting a motion in limine, courts must be certain that such action will not unduly restrict the opposing party’s presentation of its case. Because of this danger, it is imperative that the in limine order be clear and that all parties concerned have an accurate understanding of its limitations.” (83 Ill. 2d 545, 550.)

The oral motion, phrased differently each time, and the court’s statement which simply granted “this motion” do not, in our judgment, meet the specificity requirements of Reidelberger. Rather, they leave quite unclear the extent to which reference to Claude Leslie’s driving record was prohibited. In these circumstances the finding that the order was violated cannot serve as a basis for reversal.

Defendant also argues that the appellate court’s reversal was proper because the trial court erroneously allowed plaintiff to introduce, as his second, third, and fourth exhibits, provisions excerpted from defendant’s training manual. Defendant contends that these company rules did not reflect feasible conduct and were thus irrelevant and inadmissible under Murphy v. Messerschmidt (1977), 68 Ill. 2d 79. Murphy, however, is distinguishable. This court there held that a construction code incorporated into a city ordinance was improperly introduced because there was no evidence that the code was promulgated to eliminate existing hazards; it was thus irrelevant for the purpose of evaluating conduct engaged in prior to its promulgation. In contrast, defendant’s rules, although typically phrased in the form of exhortations, were descriptive of and intended to eliminate existing hazards. They did not conclusively determine the standard of care and the jury was not instructed that they did. Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 113, 125, quoting Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 332. See 1 J. Dooley, Modem Tort Law sec. 3.29 (rev. ed. 1982). See also Chicago City Ry. Co. v. Lowitz (1905), 218 Ill. 24, 28.

Defendant additionally contends that these exhibits were prejudicial in that they were presented in a form similar to jury instructions. Their examination reveals, however, that they were plainly labeled as exhibits and that the source of each excerpt is prominently indicated. We do not agree that they can be fairly characterized as deceptive.

Nor do we agree that the jury’s verdict was against the manifest weight of the evidence. There was evidence presented to the jury which, if believed, as it apparently was, would support the verdict.

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

Appellate court reversed; circuit court affirmed.


author: JUSTICE MORAN JUSTICE GOLDENHERSH, JUSTICE SIMON,

text:
    (No. 55874.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. R.D.S., a Minor, Appellee.

      Opinion filed January 24, 1983.

      GOLDENHERSH and UNDERWOOD, JJ., specially concurring.
    SIMON, J., and RYAN, C.J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and John A. Barra, State’s Attorney, of Peoria (Ellen M. Flaum and Terence M. Madsen, Assistant Attorneys General, of Chicago, and John X. Breslin, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Charles W. Hoffman, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE MORAN

delivered the decision of the court and the following opinion in which JUSTICE WARD and JUSTICE CLARK join:

The respondent, represented by appointed counsel at all times, was adjudged a delinquent minor and committed to the Department of Corrections, Juvenile Division, by the circuit court of Peoria County. The appellate court, by order (100 Ill. App. 3d 1201), reversed, finding that the legal guardian did not receive proper notice of the proceedings. We allowed the State’s petition for leave to appeal.

This case presents one issue: Is the jurisdiction of the circuit court properly invoked when the State fails to name or notify a court-appointed guardian of a minor in a proceeding brought against the guardian’s charge?

On September 25, 1980, the court, in proceedings not relevant to this case, found that the parents were unable to care for the minor and appointed, as legal guardian over the minor, the Guardian Administrator of the Department of Children and Family Services (guardian). The guardian placed the minor in the temporary care of his mother while it sought alternate placement.

On October 16, 1980, a petition charging the minor with theft was filed. Supplemental petitions charging other thefts were filed on November 12 and 25, 1980. These three petitions named the minor and his parents as respondents, but not the guardian. The minor and his mother were served with each of the three petitions. The father’s address was listed on the petitions only as Los Angeles, California. He was neither served with summons nor given notice by any means of the October 16 or November 12 petitions. He was given notice by publication of the November 25 petition. No summons was served on the guardian.

A temporary detention order was entered on November 25, 1980, which ordered the minor into the temporary custody of the Juvenile Detention Center. This order permitted release of the minor to the custody of the guardian for screening. In addition, the order referred to the three petitions served on the minor and his mother and set the date for the adjudicatory hearing.

The adjudicatory hearing was held on December 15, 1980. The minor, his attorney, his mother, and the State’s Attorney were present. The guardian was not. The minor admitted to the theft charge alleged in the October 16 petition, and upon motion by the State, the other two petitions were dismissed. The court found the minor to be delinquent and adjudged him a ward of the court.

The initial dispositional hearing took place on Decernber 22, 1980. At this hearing, the guardian’s caseworker appeared for the first time in the proceedings. The matter was continued until January 15, 1981. On this date, after reviewing the minor’s record and the evidence presented, the court terminated the guardianship and committed the minor to the Department of Corrections, Juvenile Division, for an indefinite term not to exceed his 21st birthday.

The State maintains that the wording of section 4— 1(2)(d) of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 1(2)(d)) requires that the petition name as respondent either the legal guardian or the person having custody or control over the minor. Since the minor was living with his mother when the petitions were filed, the State reasons that the mother was a “person having custody or control of the minor.” It concludes, therefore, that since the mother was named as a respondent and served, there was no longer any statutory requirement to name and serve the legal guardian.

The State further claims that the guardian had de facto notice of the proceeding through the November 25 temporary detention order. We find nothing in the record, however, to indicate that the guardian received a copy of this order. The State also asserts that the guardian had defacto notice based on its caseworker’s involvement with the minor. Finally, the State contends that the guardian was not deprived of an opportunity to participate in the proceedings and that neither the minor nor the guardian was prejudiced by the lack of formal notice.

The minor responds that the guardian was appointed after the court had found the parents unfit or unable to care for him and removed him from their custody. The minor asserts that the State’s interpretation of section 4 — 1(2)(d) is at odds with the purpose of appointing a guardian, which is “to make important decisions in matters having a permanent effect on the life and development of the minor ***.” (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 11.) Moreover, he contends that the State’s interpretation conflicts with the due process requirements of juvenile proceedings as set out by the Supreme Court in In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428. He also claims the State’s reading of section 4 — 1(2)(d) is in conflict with this court’s interpretation of that section. He points out that in In re J.W. (1981), 87 Ill. 2d 56, 60, it was said: “Every parent, legal guardian, and custodian, or when necessary the nearest relative, must be named as a respondent in the case. (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 1.)” The minor further maintains that the failure to name the guardian as a party respondent deprived the guardian of its “right to be present, to be heard, to present evidence material to the proceedings, [and] to cross-examine witnesses ***.” Ill. Rev. Stat. 1979, ch. 37, par. 701-20(1).

Due process of law requires that notice in juvenile proceedings be equivalent to that constitutionally required in criminal or civil cases. (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.) This constitutional mandate is enumerated in sections 4 — 1 to 4 — 4 of the Act (Ill. Rev. Stat. 1979, ch. 37, pars. 704 — 1 to 704 — 4), which set out the requirements for valid notice. Section 4 — 1(2) lists those interested parties who must be named as respondents. This section provides:

“The petition shall *** set forth (a) facts sufficient to bring the minor under Section 2 — 1; (b) the name, age and residence of the minor; (c) the names and residences of his parents; (d) the name and residence of his legal guardian or the person or persons having custody or control of the minor, or of the nearest known relative if no parent or guardian can be found; and (e) if the minor upon whose behalf the petition is brought is detained or sheltered in custody, the date on which detention or shelter care was ordered by the court or the date set for a detention or shelter care hearing. If any of the facts herein required are not known by the petitioner, the petition shall so state.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 37, par. 704-1(2).)

While subsection (d) reads in the disjunctive, we note that the entire section reads in the conjunctive. A petition filed pursuant to section 4 — 1(2) is required to set forth facts for each of the subsections or else indicate that such facts are unknown.

The question to determine here is whether the mother had custody or control of the minor as contemplated by the Act. If she did not, then the guardian was required to be named as a respondent.

The Act provides that custody or guardianship granted thereunder continues until the court otherwise directs (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 7(5)). The minor or any person interested in the minor may apply to the court for a change in custody of the minor or for restoration of the minor to the custody of his parents. (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 8(3).) Moreover, “[wjhenever the Department [of Children and Family Services] discharges a minor from its care and service, the Guardianship Administrator of the Department shall petition the court for an order terminating guardianship.” Ill. Rev. Stat. 1979, ch. 37, par. 705-7(1)(f).

Under the Act, guardianship of the person of a minor includes “the rights and responsibilities of legal custody except where legal custody has been vested in another person or agency.” (Ill. Rev. Stat. 1979, ch. 37, par. 701— 11(c).) “Legal custody” means the relationship created by an order of court which imposes on the custodian the responsibility of physical possession of a minor, the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care. Ill. Rev. Stat. 1979, ch. 37, par. 701-12.

Neither the minor, the minor’s mother, the guardian, nor any other interested party ever filed a petition with the circuit court seeking a change in custody prior to the filing of the three petitions at issue here. Legal custody of the minor was never removed from the guardian and restored to the minor’s mother.

The mother, at the time the petitions were filed, did not have the status of a person having custody or control over the minor as the State urges. She was properly named a respondent pursuant to section 4 — 1(2)(c) because she was a parent. However, the mother could not be named under section 4 — 1(2)(d) as an alternative to naming the legal guardian. Section 4 — 1(2)(d) required that the petitions filed in this case name the guardian as a necessary party respondent.

The notice provisions of the Act further provide that “[a] summons shall be directed to the minor and to each person named as a respondent in the petition.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 3(1).) A pleading that does not name and notify a necessary respondent in a juvenile proceeding fails to invoke the jurisdiction of the court and thereby renders its orders void. See People ex rel. McEntee v. Lynch (1906), 223 Ill. 346; In re R.P. (1981), 97 Ill. App. 3d 889; In re C.G. (1979), 69 Ill. App. 3d 56.

Here, as earlier stated, the State neither named nor notified the guardian of the December 15 adjudicatory hearing. By not doing so, the trial court’s jurisdiction was not properly invoked and its order of December 15 and subsequent orders were void.

The judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE GOLDENHERSH,

specially concurring:

I agree that because the guardian did not receive notice of the proceedings the judgment of the circuit court was properly reversed. I cannot, however, agree with that portion of the opinion which states: “A pleading that does not name and notify a necessary respondent in a juvenile proceeding fails to invoke the jurisdiction of the court and thereby renders its orders void.” (94 Ill. 2d at 83.) As authority for this statement the majority opinion cites People ex rel. McEntee v. Lynch (1906), 223 Ill. 346. When McEntee was decided “An Act to regulate the treatment and control of dependent, neglected and delinquent children” provided:

“Sec. 2. The circuit and county courts of the several counties in this State, shall have original jurisdiction in all cases coming within the terms of this act. In all trials under this act any person interested therein may demand a jury of six or the judge of his own motion may order a jury of the same number to try the case.
Sec. 3. In counties having over 500,000 population, the judges of the circuit court shall at such times as they shall determine, designate one or more of their number, whose duty it shall be to hear all cases coming under this act. A special court room to be designated as the juvenile court room, shall be provided for the hearing of such cases, and the findings of the court shall be entered in a book or books to be kept for that purpose, and known as the ‘Juvenile Record,’ and the court may for convenience be called the ‘Juvenile Court.’ ” (Hurd’s Ill. Rev. Stat. 1905, ch. 23, pars. 170, 171.)

At that time section 12 of article VI of the Illinois Constitution of 1870 provided that “the circuit courts shall have original jurisdiction of all causes in law and equity” and that county courts had original jurisdiction in certain specified matters “and such other jurisdiction as may be provided for by general law.”

A court of general jurisdiction was presumed to have jurisdiction to render any judgment entered by it (Bartunek v. Lastovken (1932), 350 Ill. 380), and every reasonable presumption was indulged in favor of its jurisdiction. (Matthews v. Hoff (1885), 113 Ill. 90.) However, no such presumption prevailed in connection with special statutory jurisdiction. In such cases jurisdiction was never presumed, and whatever the jurisdiction of the court, the proceedings were required to be in strict conformity with the statute. (Brown v. VanKeuren (1930), 340 Ill. 118.) As said in City of Chicago v. Hitt (1929), 334 Ill. 619, 628, “A court of general jurisdiction may have a special statutory jurisdiction conferred upon it not exercised according to the course of common law and which does not belong to it as a court of general jurisdiction. Nothing is taken by intendment in favor of the jurisdiction of a court of limited jurisdiction, or of a court of general jurisdiction while exercising special or limited powers. In the latter case the record must show the facts which authorize the court to act, and a judgment rendered without jurisdiction may be treated as void everywhere.”

Article VI, section 9, of the Constitution of 1970 provides: “Circuit courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction ***.” In view of this broad grant of jurisdiction in our present constitution, the rationale of authorities such as McEntee is no longer applicable. The defect in this case is not that there was a failure to invoke jurisdiction; the court had jurisdiction, and there was no necessity for invoking it. The defect here was that the required statutory notice was not given and the order was therefore erroneously entered.

JUSTICE UNDERWOOD joins in this special concurrence.

JUSTICE SIMON,

dissenting:

The notice provided to the minor and to his mother, with whom he was residing, was more than sufficient to apprise him of the charges against him and to permit him to prepare and present a defense. I would not overturn the circuit court’s adjudication of delinquency on the grounds of inadequate notice under either the statute or the Constitution.

Section 4 — 1(2) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 1(2)) requires that certain persons be named in a petition initiating juvenile proceedings against a minor. The prosecutor must include the name of the minor’s “legal guardian or the person or persons having custody or control of the minor ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 1(2)(d).) The use of the word “or” in the statute permits the prosecutor to name either the guardian or a person having “custody or control” of the minor. I believe that the minor’s mother had “custody or control” of her son by virtue of his residence in her home pending “alternative placement.” Therefore, the naming of the mother in the petition was sufficient to comply with section 4 — 1(2)(d), and it was not necessary to name or notify the guardian.

The majority avoids this result by adopting an exceedingly technical and erroneous interpretation of the phrase “custody or control.” The majority holds that “custody or control” in section 4 — 1(2)(d) is identical to “legal custody,” which is defined in section 1 — 12 (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 12). In this case the Guardian Administrator of the Department of Children and Family Services possessed “legal custody” over the minor by virtue of his guardianship. (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 11(c).) Because “legal custody” cannot change except by order of the court, the guardian’s administrative act placing the minor in his mother’s home could not create “legal custody” in her. Thus, the majority argue that the notice to the mother was not to a person having “legal custody” over the minor.

The majority’s interpretation of section 4 — 1(2)(d) ignores the language of the statute. If the legislature had meant “legal custody” in this section it would have used that phrase and not “custody or control.” The use of the phrase “custody or control” implies that the legislature meant to provide for the many informal and unconventional relationships between adults and a minor. I would hold that the mother’s temporary custody of the minor was more than sufficient to constitute “custody or control” under section 4 — 1(2)(d) and that consequently notice to the guardian was not required by the statute.

This interpretation of section 4 — 1(2)(d) is consistent with its purpose of achieving due process by providing notice of the proceedings to the minor and other interested parties. (See In re J.W. (1981), 87 Ill. 2d 56, 60.) In In re Gault (1967), 387 U.S. 1, 33, 18 L. Ed. 2d 527, 549, 87 S. Ct. 1428, 1446, the United States Supreme Court observed that notice is required in a juvenile proceeding in order to inform the minor of the precise nature of the charges against him and to afford him with a “reasonable opportunity to prepare.” The record in this case illustrates that notice to a parent in temporary “custody or control” of the minor was more than sufficient. The minor, assisted by legal counsel, fully contested the matter at each stage in the proceedings.

For much the same reason, the failure to notify the guardian of the proceedings does not violate due process either. It is important to note that this is not a case in which the guardian is objecting to the adjudication of his rights or those of the minor without notice. (Cf. In re Anast (1974), 22 Ill. App. 3d 750, 756 (due process was violated where a stepfather was not notified of proceedings in which his custody of minor children was terminated).) Here it is the juvenile who argues that his rights were violated by the failure to notify the guardian of the proceedings. As evidenced by the conduct of the proceedings the notice to the minor and his mother was more than sufficient to inform him of the charges and to permit the preparation of a suitable defense.

Because I cannot discover any statutory or constitutional defect arising from the failure to notify the guardian I would reverse the decision of the appellate court.

CHIEF JUSTICE RYAN joins in this dissent.