author: MR. JUSTICE MORAN

text:
    (No. 51310.
    THE DEPARTMENT OF CONSERVATION, Appellant, v. DAVID A. JONES et al., Appellees.

      Opinion filed May 18, 1979.

      William J. Scott, Attorney General, of Springfield (Roy E. Frazier, Assistant Attorney General, and Frank M. Daly, Special Assistant Attorney General, of Waukegan, of counsel), for appellant.
    Morrison 8c Nemanich, of Waukegan (Donald T. Morrison, of counsel), for appellees.
    Burke, Weber 8c Egan, of Chicago (Thomas T. Burke, Edward J. Egan, and William E. Ryan, of counsel), for amicus curiae Joseph M. Johnson.
    Nadelhoffer, Hennessey, Dommermuth 8c Brestal, of Naperville (Stephen D. Helm, of counsel), for amicus curiae Forest Preserve District of Du Page County.
   MR. JUSTICE MORAN

delivered the opinion of the court:

One year after the Department of Conservation (Department) filed a petition to condemn 13.4 acres of defendants’ improved property, a jury, on December 16, 1976, returned a verdict setting just compensation for the property at $275,000. Thirteen days later, the trial court entered judgment on the verdict and reserved judgment on the question of interest. The court also ordered that title to the property would vest in the Department upon payment, within 120 days, of the $275,000 plus $13 in costs. On February 1, 1977, the Department deposited the sum of $275,013 with the county treasurer of Lake County. Pursuant to defendants’ motion for amendment of the judgment order, the trial court, on February 8, 1977, entered- an order that the Department pay the statutory interest of 6% from the date of the jury verdict to the date of the deposit of the award. The Department thereafter deposited the sum of $1,512.50 in interest.

On August 25, 1978, the Appellate Court for the Second District affirmed the trial court’s judgment and held that the Department was properly required to pay statutory interest from the date of verdict to the date of deposit of the award. (63 Ill. App. 3d 402.) However, on August 18, 1978, the Appellate Court for the Fourth District had held, to the contrary, that interest on such condemnation awards accrues not from the date of the verdict but from the date the condemnor actually takes possession of the property. (Department of Transportation v. Keller (1978), 63 Ill. App. 3d 237.) No leave to appeal was sought from the decision of the Fourth District.

The issue, quite simply, is whether the Interest Act (Ill. Rev. Stat. 1977, ch. 74, par. 1 et seq.) is applicable to eminent domain proceedings. In 1975, section 3 of the Interest Act provided:

“Judgments recovered before any court or magistrate shall draw interest at the rate of 6% per annum from the date of the same until satisfied. When judgment is entered upon any award, report or verdict, interest shall he computed at the rate aforesaid, from the time when made or rendered to the time of rendering judgment upon the same, and made apart of the judgment. However, that the judgment debtor may by tender of payment of judgment, costs and interest accrued to date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of appeal, writ of error, or other steps to reverse, vacate or modify the judgment.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 74, par. 3.)

If the Interest Act is applicable, the italicized portion of the section clearly resolves that interest is to accrue from the date of the jury verdict. The portion following the italicized sentence, which portion we will discuss later, was added as a proviso, in 1955. (Ill. Ann. Stat., ch. 74, par. 3, Historical Note, at 48 (Smith-Hurd 1966).) With this limited exception, the section remained materially unchanged from its enactment in 1879 until 1975.

As early as 1897, this court concluded that section 3 of the Interest Act was applicable to condemnation judgments in eminent domain proceedings. Epling v. Dickson (1897), 170 Ill. 329, involved condemnation judgments for damage to property caused by the construction of a railroad. In reversing the trial court, which had refused to allow interest on the judgments, this court proclaimed:

“Section 3 of chapter 74 of the statute [citation] *** provides that judgments shaU draw interest at the rate of six per cent per annum from the date until satisfied. No exception is made in the statute where a judgment has been rendered as compensation for lands taken or damaged for public use, and in the absence of an exception the statute which controls judgments in other cases must control here. ” (Emphasis added.) (Epling v. Dickson (1897), 170 Ill. 329, 335.)

By 1938, this court regarded the right to statutory interest in an eminent domain proceeding to be well settled. Blakeslee’s Storage Warehouses v. City of Chicago (1938), 369 Ill. 480, 484. Also, Chapralis v. City of Chicago (1945), 389 Ill. 269, 272.

Finally, in 1942, this court, confronted with the precise issue which we have before us in this cause, held that section 3 of the Interest Act required that interest in a condemnation proceeding be paid from the date of the jury verdict. In Commissioners of Lincoln Park v. Schmidt (1942), 379 Ill. 130, the trial court had entered judgment on a jury verdict of just compensation and had incorporated into the judgment statutory interest from the date of the verdict. On direct appeal, this court affirmed the trial court judgment and stated unequivocally:

“The judgment in this case being a final one, and being authorized and entered under the Eminent Domain act of 1872[,] was it error to allow interest on the verdict and include it in the amount of the judgment? Section 3 of the Interest act expressly provides that a report, award or verdict shall bear interest until judgment is entered. Section 10 of the Eminent Domain act refers to the action of the jury in fixing compensation both as a report and as a verdict. It comes clearly within the terms of the statute, and we think it was mandatory upon the trial court to ascertain the interest accruing upon the verdict, and include it in the judgment.” (Commissioners of Lincoln Park v. Schmidt (1942), 379 Ill. 130, 138.)

In addition to its enforcement of the plain statutory meaning, the court observed:

“The present statute on interest [section 3 of the Interest Act] has settled the question under consideration by requiring the judgment for compensation fixed under the Eminent Domain act of 1872 to include interest on the award, report, or verdict as a part thereof. The constitution provides that ‘every person ought to obtain justice promptly and without delay,’ and doubtless the legislature was actuated by this command to provide that the land owner should have interest on the value of land, as fixed by a jury, from the time the verdict was rendered, which obviously would prevent an unjust result in case the judgment on the verdict did not promptly follow.” Commissioners of Lincoln Park v. Schmidt (1942), 379 Ill. 130, 138-39.

The opinion in Schmidt, reinforced by decisons in Chapralis v. City of Chicago (1945), 389 Ill. 269, and Department of Public Works & Buildings v. Larson (1961), 22 Ill. 2d 425, was considered dispositive of the issue until it was controverted by appellate court dictum in City of Chicago v. Albert Schorsch Realty Co. (1972), 6 Ill. App. 3d 1074. (See F. Righeimer 8c F. Righeimer, Eminent Domain in Illinois sec. 5.10, at 150 (2d ed. 1972).) The court in Schorsch concluded that the Interest Act was not applicable to eminent domain proceedings because “the words (judgment debtor’ used in Section 3, limit the application of the statute to cases in which judgment is of a kind on which execution may issue.” (City of Chicago v. Albert Schorsch Realty Co. (1972), 6 Ill. App. 3d 1074, 1079.) This conclusion, unsupported by reason or authority, refers to the proviso which, in 1955, was added to section 3, ostensibly to remedy the inequity of depriving an appealing party of interest which accrues during the pendency of the appeal. (Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 522-24.) The term “judgment debtor” was merely a convenient and acceptable way to characterize the party against whom judgment was entered. There is no basis whatsoever to assume, as the court in Schorsch apparently did, that the legislature intended the radical result of rendering the Interest Act inapplicable to eminent domain proceedings.

Notwithstanding the Schmidt case and the explicit language of the Interest Act, the Department urges that interest in all condemnation cases should begin to accrue, as it does in “quick-take” condemnation proceedings, only when the condemnor takes possession of the property. The Department recognizes that this was not a “quick-take” proceeding and that the “quick-take” provisions of the Eminent Domain Act (Ill. Rev. Stat. 1975, ch. 47, par. 2.2 et seq.) are inapplicable, but it fails to perceive why a proceeding other than “quick-take” should be treated differently.

The legislature first provided for “quick-take” condemnations in 1957. (Ill. Rev. Stat. 1957, ch. 47, par. 2.2 et seq.) Section 3 of the Interest Act, which, until that time, had been applicable to all condemnation proceedings, was ill suited to meet the special conditions endemic to “quick-take” condemnations. The distinguishing feature of “quick-take” condemnations is that, by providing for the immediate vesting of title to property, it gives the condemnor possession and use of the property before the final verdict ascertaining compensation and before judgment is entered on the compensation award. Section 3 of the Interest Act, which only provided for interest after the verdict or after the judgment, would not have entitled the owner in a “quick-take” proceeding to any interest from the time he actually lost possession and use of the property. Such a result would have conflicted with the long-established rule, founded in equity and in the constitutional dictate of “just compensation,” which requires that compensation for property be paid before the condemnor takes possession and, if it is not fully paid, that interest be paid from that time. (Department of Public Works & Buildings v. Exchange National Bank (1975), 61 Ill. 2d 346, 349; Leitch v. New York Central R.R. Co. (1944), 388 Ill. 236, 246; Phillips v. South Park Commissioners (1887), 119 Ill. 626, 645.) Consequently, the legislature enacted a provision (applicable only to “quick-takes”), which insured that interest would accrue from the time possession was lost (Ill. Rev. Stat. 1957, ch. 47, par. 2.6). “In enacting section 2.6, the legislature was doubtless motivated by a realization that previously existing provisions for interest were inadequate to the special conditions created by the quick-taking provisions of the law, and the section was enacted to meet these new conditions. The language of the section, however, clearly indicates that it was not intended to preclude interest under section 3 of the Interest Act in cases where it would otherwise be applicable(Emphasis added.) (Department of Public Works & Buildings v. Larson (1961), 22 Ill. 2d 425, 428.) Where the condemnor does not seek possession of the property until after compensation is finally determined and judgment is entered on the condemnation award, the concern which motivated the legislature to supplement the provisions of the Interest Act is nonexistent. Section 3 of the Interest Act, by providing for interest between the date of verdict and the eventual change in possession, fully guarantees that compensation is paid before the owner forfeits possession. In addition, it recognizes, as does the Uniform Eminent Domain Code, that the allowance of interest is a reasonable method for reimbursing the property owner for compensable losses he may sustain by reason of unavoidable delay between the date of the verdict and the actual receipt by him of just compensation to which he is entitled. 13 Uniform Laws Annotated, Uniform Eminent Domain Code sec. 1202, comment, at 132 (master ed. 1975). Also see 3 Nichols, Eminent Domain sec. 8.63 (rev. 3d ed. 1978).

For the reasons given, the judgment of the Appellate Court for the Second District is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE WARD

license: Public Domain

text:
    (No. 50522.
    ROBERT EASTERN, Appellee, v. VIC CANTY et al.-(Nelson Hagnauer, Appellant.)

      Opinion filed May 18, 1979.

      GOLDENHERSH, C.J., took no part.
    Donald L. Smith, Assistant State’s Attorney, of Alton (Al J. Pranaitis, of counsel), for appellant.
    Starnes 8c Nelson, of Belleville, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Robert Eastern, filed a complaint in the circuit court of St. Clair County for declaratory and injunctive relief against the defendants, Vic Canty, chairman of the county board of St. Clair County, Nelson Hagnauer, chairman of the county board of Madison County, and the Metro-East Sanitary District, a public corporation organized under the Metro-East Sanitary District Act of 1974 (Ill. Rev. Stat. 1977, ch. 42, pars. 501—1 through 505—5).

The trial court denied motions to dismiss made by Hagnauer and the district, and on February 2, 1978, it granted a motion by the plaintiff for summary judgment, holding that section 3 — 1 of the Act (Ill. Rev. Stat. 1977, ch. 42, par. 503—1) violated the equal protection clause of the Federal -Constitution. In his complaint the plaintiff sued not only as an individual but as a representative of the commissioners of the district and also as a representative of the residents, voters, and taxpayers of that portion of the district located in St. Clair County. The trial court did not determine the question of the plaintiff’s standing to sue in a representative capacity, but rendered its judgment only on the basis of the plaintiff’s right to sue as an individual. The court also granted a permanent injunction preventing the defendants from removing the plaintiff from office and replacing him with a commissioner appointed by defendant Hagnauer or any successor to the latter. Hagnauer appealed to this court under Rule 302(a) (58 Ill. 2d R. 302(a)).

We consider first whether the circuit court had jurisdiction to enter its judgment order of February 2, 1978, and an earlier order of December 5, 1977, which denied Hagnauer’s motion to dismiss and granted a temporary injunction. The jurisdictional question arises because of Hagnauer’s removal or attempted removal of this case to the United States District Court for the Southern District of Illinois. Although neither party refers to this matter, the record on appeal contains a copy of a verified petition for removal filed in the district court on September 30, 1977. A copy was also filed on the same date with the clerk of the circuit court. The record contains no further reference to the removal. Though the parties do not discuss the matter, it is our obligation to take notice of matters such as this which go to the jurisdiction of the circuit court. Cf. People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 105.

Section 1441(a) of the Federal judicial code (28 U.S.C. sec. 1441(a) (1976)) makes any case involving a Federal question removable. Section 1446(d) (28 U.S.C. sec. 1446(d) (1976)) requires that a bond be posted when a petition for removal is filed, and section 1446(e) (28 U.S.C.A. sec. 1446(e) (Supp. 1978)) provides as follows:

“Promptly after the filing of such petition for the removal of a civil action and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” (Emphasis added.)

It is universally held that when a petition for removal has been filed in Federal district court and the other acts specified by section 1446(e) have been performed, the State court loses jurisdiction to proceed further until the case is remanded. Even if the basis of the district court’s remand is that the case was not removable, no action taken by the State court in the interim can stand. While the point has not previously arisen in this court, our appellate court has correctly, we consider, so held. People v. Martin-Trigona (1975), 28 Ill. App. 3d 605; People v. Martin-Trigona (1976), 36 Ill. App. 3d 482. See also South Carolina v. Moore (4th Cir. 1971), 447 F.2d 1067; United States ex rel. Echevarria v. Silberglitt (2d Cir. 1971), 441 F.2d 225; State v. Francis (1964), 261 N.C. 358, 134 S.E.2d 681; Schuchman v. State (1968), 250 Ind. 408, 236 N.E.2d 830, all cited in the first of the Martin-Trigona cases.

The same conclusion has been reached in numerous other decisions. See Hopson v. North American Ins. Co. (1951), 71 Idaho 461, 233 P.2d 799; Bean v. Clark (Miss. 1956), 85 So. 2d 588; State ex rel. Gremillion v. NAACP (La. 1956), 90 So. 2d 884; Adair Pipeline Co. v. Pipeliners Local Union No. 798 (S.D. Tex. 1962), 203 F. Supp. 434, aff'd (5th Cir. 1963), 325 F.2d 206; Fossey v. State (1970), 254 Ind. 173, 258 N.E.2d 616; State v. Price (1972), 15 N.C. App. 599, 600-01, 190 S.E.2d 403, 404; Davis v. Davis (S.C. 1976), 229 S.E.2d 847; City of Lake Charles v. Bell (La. 1977), 347 So. 2d 494, 497-98; Cavanagh v. Cavanagh (R.I. 1977), 380 A.2d 964; People v. Wynn (1977), 73 Mich. App. 713, 253 N.W.2d 123; Annot., 38 A.L.R. Fed. 824 (1978); 14 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure sec. 3737 (1976).

Under section 1446(e) the filing of a petition for removal must be followed promptly by written notice to all adverse parties and the filing of a copy of the petition in the State court. As noted previously, no question can be raised here as to the latter requirement. With respect to the requirement of prompt written notice to the plaintiff, however, the petition for removal does not allege, nor does the record show, the giving of such notice, and language in Crown Construction Co. v. Newfoundland American Insurance Co. (1968), 429 Pa. 119, 239 A.2d 452, and other decisions suggests that, like failure to file a copy of the petition in State court, lack of prompt notice to adverse parties also amounts to a failure to perfect removal. (See 429 Pa. 119, 125, 239 A.2d 452, 455; Dorsey v. State (Ind. App. 1976), 357 N.E.2d 280; State v. Stewart (1973), 21 Ariz. App. 123, 124, 516 P.2d 332, 333; Donlan v. F. H. McGraw & Co. (E.D.N.Y. 1948), 81 F. Supp. 599, 600; Beleos v. Life and Casualty Insurance Co. (E.D.S.C. 1956), 161 F. Supp. 627, 628-29; Berberian v. Gibney (1st Cir. 1975), 514 F.2d 790, 792-93.) Because of subsequent action taken by the district court in this case it is unnecessary to decide that question, however.

Upon.his inquiry the clerk of this court was advised that on November 4, 1977, the district court entered an order dismissing the petition for removal. The basis of the order, a copy of which we have examined, was not that prompt notice of the removal was wanting, but that venue was improper for the reason that St. Clair County is located in the Eastern District of Illinois, not the Southern District. See 28 U.S.C. sec. 93(c) (1976).

Section 1447(c) of the judicial code (28 U.S.C. sec. 1447(c) (1976)) provides:

“If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.”

Had the order of November 4 remanded the case, the circuit court would thereby have reacquired jurisdiction. Brown v. State Farm Mutual Automobile Insurance Co. (Tex. Civ. App. 1969), 449 S.W.2d 93; Davis v. Davis (S.C. 1976), 229 S.E.2d 847, 848.

While the order here did not remand the case, that was unnecessary, as it was based on a determination that the filing of the defective petition had not effected a removal, and the order served to terminate the proceedings in the district court. In In re MacNeil Bros. Co. (1st Cir. 1958), 259 F.2d 38.6, a purported petition for removal had been filed by one who was not a defendant, and the district court dismissed the petition without remanding the case. In commenting upon that disposition of the case the court of appeals observed:

“[T]he effect of the order of dismissal of the petition for removal was not to dismiss the original complaint which the District Court considered as never having been removed from the jurisdiction of the State court, but to leave the said case pending on the docket of the [State court]; and so far as we can see under the peculiar circumstances, that Court will not have to wait for a technical order of ‘remand’ before proceeding to exercise its jurisdiction to dispose of the case.” 259 F.2d 386, 389.

We think this observation is applicable to the “peculiar circumstances” of the present case. In this connection we note that the clerk of the district court did not mail to the clerk of the circuit court a copy of the order of November 4. Even if that order had been cast in terms of a remand, however, this omission, for the reasons given in Brown v. State Farm Mutual Automobile Insurance Co. (Tex. Civ. App. 1969), 449 S.W.2d 93, 97-98, would not have been significant. We conclude, therefore, that the circuit court had jurisdiction to decide this case.

When a matter pending in the courts of this State is also the subject of litigation in the Federal courts system, questions may arise as to whether the State court has jurisdiction to render a judgment on the merits and whether such a judgment would be dispositive of the controversy. See, e.g., 28 East Jackson Enterprises, Inc. v. Rosewell (1976), 65 Ill. 2d 420; 551 F.2d 1093 (7th Cir. 1977), cert, denied (1977), 434 U.S. 835, 54 L. Ed. 2d 96, 98 S. Ct. 123; Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, cert, denied (1975), 420 U.S. 975, 43 L. Ed. 2d 655, 95 S. Ct. 1398; Lektro-Vend Corp. v. Vendo Co. (N.D. Ill. 1975), 403 F. Supp. 527, aff’d (1976), 545 F.2d 1050, rev’d (1977), 433 U.S. 623, 53 L. Ed. 2d 1009, 97 S. Ct. 2881.

Expedition of a decision on the merits, avoidance of uncertainty and of possible conflict with the Federal courts, economy of judicial administration, and a sense of professional obligation all dictate that counsel should bring to the attention of our courts any litigation pending in the Federal courts over the same matter, together with their views on any jurisdictional question which may be presented.

Turning to the merits of the case, section 1 — 2 of the Metro-East Sanitary District Act of 1974 (Ill. Rev. Stat. 1977, ch. 42, par. 501—2) provides that the voters of a sanitary district organized under a statute of 1907, entitled “An Act to create sanitary districts in certain localities, to drain and protect the same from overflow for sanitary purposes and to provide for sewage disposal” (Ill. Rev. Stat. 1977, ch. 42, par. 247 et seq.), may dissolve the district pursuant to sections 29 through 29.3 of that act as amended in 1974 (Ill. Rev. Stat. 1977, ch. 42, pars. 274.1 through 274.4) and create a new district having the same boundaries as the old.

Section 1 of the 1907 act (Ill. Rev. Stat. 1977, ch. 42, par. 247) authorized the incorporation as a sanitary district under that act of any contiguous area lying within the limits of two counties. The present Metro-East Sanitary District, which includes portions, but less than all, of the County of St. Clair and of the County of Madison, appears to be the successor to a sanitary district which had been organized under the 1907 act. See People ex rel. East Side Levee & Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442, 444.

Section 3 — 1 of the 1974 act provides in its pertinent part as follows:

“The district shall be governed by a Board of Commissioners, consisting of 5 commissioners. Three of the commissioners shall be residents of that portion of the district in the county having the greater equalized assessed valuation of the district, and 2 shall be residents of that portion of the district in the other county. The appointment of commissioners from each county shall be made by the chairman of the county board of that county with the advice and consent of the county board, except that in the case of a home rule county as defined by Article VII, Section 6, of the Constitution of 1970 the appointment shall be made by the chief executive officer of the county with the advice and consent of the county board.
* * *
If the relative equalized assessed valuation changes so that the position of the 2 counties with respect to majority and minority representation on the board is reversed, the next appointment that would otherwise have been made by the appointing authority for the county formerly entitled to 3 directors shall be made by the appointing authority for the other county.” Ill. Rev. Stat. 1977, ch. 42, par. 503-1.

The circuit court held that the formula for the composition of the board of commissioners prescribed by the second sentence of the first paragraph of the section called for a comparison of assessed valuation between the portion of each county lying within the district, not between each county as a whole. The plaintiff concurs in this view, and we agree that such a construction is required for a meaningful reading of the section.

The complaint alleged that the plaintiff resided in that portion of the district encompassed by St. Clair County, that his term as commissioner would expire in November 1977, and that under the last paragraph of section 3 — 1 his position was required to be filled by a person nominated by defendant Hagnauer, acting in his capacity as chairman of the county board of Madison County, from among residents of the portion of the district lying in the latter county. The correctness of that conclusion necessarily rests on the premise that the equalized assessed valuation of property located in the Madison County portion of the district now exceeded that of property located in the St. Clair County portion, a premise which was admitted by Hagnauer in his brief and on oral argument.

The complaint also alleged that “a substantially greater percentage of the population of the entire district is located in St. Clair County.” This allegation was denied by Hagnauer in his answer. The plaintiff requested the court to take judicial notice of the population of St. Clair County and of Madison County, as shown by the 1970 census. These figures showed that the population of the former county exceeded that of the latter by some 34,000. No request was made, however, that judicial notice be taken that the population of the portion of St. Clair County included in the district was greater than that of Madison County, and the plaintiff filed no affidavit to that effect. Hagnauer contends, therefore, that there was a genuine issue of material fact which precluded the entry of summary judgment.

On that point the trial judge stated, “There appears to be no disagreement between the parties on the basic facts that the portion of St. Clair County contained within the Metro-East Sanitary District has a greater population than the Madison County portion, but that Madison County has the greater equalized assessed valuation.”

We do not understand Hagnauer to contend seriously that the population of the St. Clair County portion of the district is not the greater of the two. Since the plaintiff’s contention is simply that the composition of the board, under the mandate of section 3 — 1, was not based on relative population, the specific figures would not be significant, and the case could therefore be disposed of without a trial of that issue.

We thus arrive at a consideration of the circuit court’s holding that section 3 — 1 violates the equal protection clause of the Federal Constitution. The criterion utilized by the court in reaching this result was stated by it in the following language:

“If a special purpose district, whether appointed or elected, has a general effect upon its population as a whole rather than a specific impact upon an identifiable group within its populace, the allocation of representation on the district’s governing board must reflect the distribution of population, in the district’s included governmental bodies in this particular case, or be in violation of the equal protection clause.”

The circuit court was also of the opinion that to make majority control of the board of commissioners depend on the amount of equalized assessed valuation of property was to adopt a standard bearing no “rational relationship” to the purposes of the district.

In our view, the circuit court’s decision did not conform to the applicable decisions of the Supreme Court of the United States, and we accordingly reverse the judgment below and remand the cause with directions to dismiss the complaint for failure to state a cause of action.

The principle of the one-man, one-vote doctrine, as exemplified by Reynolds v. Sims (1964), 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362, and the decisions stemming from it, is that when a public office must be filled by election, whether because of a constitutional mandate or a legislative enactment, the method used shall be reasonably designed to achieve the objective that the “vote of any citizen is approximately equal in weight to that of any other citizen in the State.” (377 U.S. 533, 579, 12 L. Ed. 2d 506, 537, 84 S. Ct. 1362, 1390.) From this it follows that when the determinative' vote is to be cast by electoral districts these must be “as nearly of equal population as is practicable.” 377 U.S. 533, 577, 12 L. Ed. 2d 506, 536, 84 S. Ct. 1362, 1390.

The plaintiff regards the decision of the present case as hinging on the extent to which the principle of Reynolds v. Sims applies to the selection of persons who are officeholders in a local governmental entity rather than being members of the State legislature itself. Resolution of that question, in turn, is said to require an analysis of the powers of the particular entity involved in terms of their impact upon its residents. What we see as of first importance, however, is that the district’s commissioners are not elected but appointed.

At no time, so far as we can ascertain, has the United States Supreme Court held that the Federal Constitution requires all governmental offices to be filled by election. Nor has the court held that in filling appointive offices each appointee must be selected on a basis which satisfies the one-man, one-vote requirement which would apply to elective offices. On the contrary, the constitutional permissibility of a nonelective method of selection was recognized in Sailors v. Board of Education (1967), 387 U.S. 105, 18 L. Ed. 2d 650, 87 S. Ct. 1549, and in Fortson v. Morris (1966), 385 U.S. 231, 17 L. Ed. 2d 330, 87 S. Ct. 446, each decided after Reynolds v. Sims, and not repudiated by later opinions of the court.

Sailors related to the selection of the members of a county school board. The five members of the board were elected by the vote of delegates from local school districts. Each delegate was selected by his local school board, and each member of the latter was chosen by popular vote among the qualified voters of the local district. Among the important powers of the county board was that of transferring areas from one local district to another. Since the local districts varied widely in population, it was contended that the one-man, one-vote principle was violated in the composition of the county board.

The court rejected that contention by a unanimous vote. A majority characterized the procedure as “basically appointive rather than elective." (387 U.S. 105, 109, 18 L. Ed. 2d 650, 654, 87 S. Ct. 1549, 1553.) It added: “Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of sone man, one vote5 has no relevancy." 387 U.S. 105, 111, 18 L. Ed. 2d 650, 655, 87 S. Ct. 1549, 1553.

In Fortson the court upheld, against a one-man, one-vote challenge, a provision of the Georgia Constitution whereby if no candidate in an election for governor received a majority of the vote the legislature could select the winner from the two candidates who had received the highest number of votes. In the course of its opinion in Fortson the court rejected the contention that a State was compelled “to elect its governors or any other state officers or agents through elections of the people rather than through selections by appointment or elections by the State Assembly.” 385 U.S. 231, 233, 17 L. Ed. 2d 330, 332, 87 S. Ct. 446, 448.

Avery v. Midland County (1968), 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114, and Hadley v. Junior College District (1970), 397 U.S. 50, 25 L. Ed. 2d 45, 90 S. Ct. 791, relied on by the circuit court and by the plaintiff, dealt with elected officials. These decisions extended the doctrine of Reynolds v. Sims to the election of officers of local agencies: in Avery a unit of local government having general powers (390 U.S. 474, 483, 485, 20 L. Ed. 2d 45, 52-53, 88 S. Ct. 1114, 1119-21) and in Hadley a local college district (397 U.S. 50, 53-54, 25 L. Ed. 2d 45, 49, 90 S. Ct. 791, 794). They left undisturbed, however, Sailors’ exclusion of appointive officials from the one-man, one-vote rule. Indeed, Hadley broadened that exclusion: In Sailors the court had limited its decision to local bodies whose functions were essentially “administrative” rather than “legislative,” whereas in Hadley the court rejected a suggested distinction between the elections of “legislative” officials and those of “administrative” officials. Such a distinction, the court stated, offered what would be an “unmanageable principle” of decision. (397 U.S. 50, 55-56, 25 L. Ed. 2d 45, 50, 90 S. Ct. 791, 796.) And the court, citing Sailors and Fortson, further stated:

“We have also held that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not “represent” the same number of people does not deny those people equal protection of the laws.” 397 U.S. 50, 58, 25 L. Ed. 2d 45, 52, 90 S. Ct. 791, 796.

The continuing vitality of Sailors is also shown by Rosenthal v. Board of Education (E.D.N.Y. 1974), 385 F. Supp. 223 (three-judge court), aff’d mem. (1975), 420 U.S. 985, 43 L. Ed. 2d 667, 95 S. Ct. 1418.

Rosenthal involved the selection under a New York law of the eight members of the board of education of a central high school district which included four local school districts, referred to by the court as “union free' school districts.” The members of the board of education of each of the local districts, whose population varied in number, were elected by the qualified voters in that district. The members of each local board then appointed two members of the central district board. The district court assumed for purposes of decision that an appointee to the central board must be a member of a local board. Even on this assumption, however, the court concluded that “ ‘restricting the class "of people who may be appointed does not change appointment to election. ’ ” (385 F. Supp. 223, 226.) That being so, the court, citing Hadley, held it was not required that each appointee “represent” the same number of people, and it also was unnecessary to determine whether the functions of the central board should be characterized as “administrative” or “legislative.” 385 F. Supp. 223, 226.

A like result was reached in Oaks v. Board of Trustees (N.D. Miss. 1974), 385 F. Supp. 392, and Burton v. Whittier Vocational Regional School District (D. Mass. 1978), 449 F. Supp. 37. (See also Egan v. Wisconsin State Board of Vocational, Technical & Adult Education (E.D. Wis. 1971), 332 F. Supp. 964, 968-69.) In Oaks each of the trustees of a junior college district was appointed by the board of supervisors of one of the several constituent counties in the district, and the number of trustees to which a district was entitled was not based on its relative population. In Burton a regional school district was composed of 11 towns and cities. Its 13-member governing body was formed of two representatives from each of the two largest communities and one from each of the others. These representatives were not elected but were appointed by the locally elected school committees of the constituent governmental entities. In both Oaks and Burton, the district court held that under the applicable decisions of the Supreme Court there was no violation of equal protection. Although in Bianchi v. Griffing (2d Cir. 1968), 393 F.2d 457, the court struck down a statute under which the county board of supervisors consisted of the elected supervisor of each of the 10 towns composing the county, whose population varied widely, in that case it was the town supervisors themselves who sat on the board, however, rather than persons appointed by the local authorities, as in Sailors, Rosenthal, and the other cases referred to above. Cf. Abate v. Mundt (1971), 403 U.S. 182, 29 L. Ed. 2d 399, 91 S. Ct. 1904.

Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973), 410 U.S. 719, 35 L. Ed. 2d 659, 93 S. Ct. 1224, also dealt with elective offices. It is pertinent here, nevertheless, because of its holding that the district there involved fell within an exception to the one-man, one-vote requirement for special-purpose districts, an exception which had been foreshadowed in Avery and Hadley. See Avery v. Midland County (1968), 390 U.S. 474, 483-84, 20 L. Ed. 2d 45, 52-53, 88 S. Ct. 1114, 1119-20; Hadley v. Junior College District (1970), 397 U.S. 50, 56, 25 L. Ed. 2d 45, 51, 90 S. Ct. 791, 795.

The district in Salyer was organized under California law for the purpose of building and operating facilities for the storage and distribution of water. The costs of these facilities were assessed against agricultural land located in the district according to the benefits received. The district was governed by a board of directors, each of whom was elected from one of the areas into which the district was divided. The equal protection question presented by Salyer related to voter qualification, for under the statute the franchise was limited to landowners, including landowners who were not residents, while residents who were not landowners, even if they were tenants, were excluded. A landowner’s vote, moreover, was apportioned on the basis of the assessed value of his land. The court concluded that the special limited purpose of the district and “the disproportionate effect of its activities on landowners as a group” excluded it from the application of Reynolds v. Sims. (See Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973), 410 U.S. 719, 728, 35 L. Ed. 2d 659, 666, 93 S. Ct. 1224, 1229.) A fortiori a district of such character would not be subjected to a requirement of “representation” for appointive offices.

The inapplicability of Reynolds v. Sims to appointive offices was touched upon by this court in People ex rel. Hanrahan v. Caliendo (1971), 50 Ill. 2d 72, appeal dismissed (1972), 406 U.S. 965, 32 L. Ed. 2d 663, 92 S. Ct. 2412. That case involved the validity of sections 7 and 12 of the Urban Transportation District Act (Ill. Rev. Stat. 1969, ch. 111 2/3, pars. 507, 512). Under those sections the board of trustees of a transportation district was empowered to levy taxes upon real estate, and the trustees were appointed. It was contended that this arrangement violated the equal protection clause. In rejecting that contention the court, citing Sailors and Hadleys held that with respect to appointed officials there was no requirement that each official “represent” the same number of people. 50 Ill. 2d 72, 81-82.

In People ex rel. Younger v. County of Eldorado (1971), 5 Cal. 3d 480, 487 P.2d 1193, 96 Cal. Rptr. 553, the California Supreme Court also accepted the position that the equal protection doctrine was limited to elective officials. There the States of California and Nevada had established a bi-State regional planning agency governed by a board of 10 members. Five of the members were from California, two of whose counties lay within the area governed by the agency. The county supervisors of each county appointed one person as a member of the board, even though the counties were unequal in population. In rejecting an equal protection challenge the court stated:

“We think the true meaning of Sailors and Hadley is that the legislative or administrative nature of the activities performed by an officer is irrelevant; if the officer is elected, ‘one person, one vote’ applies. If he is appointed, the principle does not apply.
The members of the Agency’s governing board are appointed; consequently, the fact that they do not ‘represent’ equal numbers of people does not deny those who are ‘underrepresented’ equal protection of the laws.” 5 Cal. 3d 480, 505-06, 487 P.2d 1193, 1209-10, 96 Cal. Rptr. 553, 569-70.

The same result was reached in litigation concerning the planning agency which arose in the Nevada courts. State ex rel. List v. County of Douglas (1974), 90 Nev. 272, 524 P.2d 1271, 1276-77.

The decisions discussed above require reversal of the judgment entered below for the plaintiff. Although the immediate impact of the judgment is simply to extend the plaintiff’s term on the board of commissioners, its effect is more far reaching. The gist of the complaint is that since section 3 — 1 of the Act permits only two members of the board to be residents of the St. Clair County portion of the district, it does not give the residents “fair and adequate representation.” The plaintiff asserts in his brief that section 3 — 1 discriminates against residents of St. Clair County on the basis of the race and economic status of many of the residents. As stated by the plaintiff, the section vests control of the district in a “white minority of wealthy persons situated in Madison County,” with the result that “[t]he Madison County portion with more wealth, but fewer people, would be able to out-vote the St. Clair County portion at the presentation of every issue.”

The supposed discrimination based on wealth of which plaintiff complains presumably refers to the differentiation between the two portions of the district on the basis of the equalized assessed valuation of property. The plaintiff fails to show that the value of land measures the wealth of its owner, however. It must also be noted that we do not deal here with an attempt to make the ownership of property a condition for voting, as in Kramer v. Union Free School District No. 15 (1969), 395 U.S. 621, 23 L. Ed. 2d 583, 89 S. Ct. 1886, and Cipriano v. City of Houma (1969), 395 U.S. 701, 23 L. Ed. 2d 647, 89 S. Ct. 1897, or of holding office, as in Turner v. Fouche (1970), 396 U.S. 346, 24 L. Ed. 2d 567, 90 S. Ct. 532.

As the cases previously discussed show, there is no constitutional requirement that the appointed governing body of a district be so constituted that a majority of its members “represent” the more populous of the areas which compose the district. Indeed, when an officeholder need not be elected at all, it seems questionable to speak of him as a “representative.”

Even in the context of elective offices no requirement of “representation” in this special sense has been imposed. In Dusch v. Davis (1967), 387 U.S. 112, 18 L. Ed. 2d 656, 87 S. Ct. 1554, a consolidated city contained seven boroughs, each of which corresponded with the boundaries of a previous governmental entity. The seven members of the city council were elected at large, but each of them was required to reside in one of the seven boroughs. Notwithstanding substantial differences in the population of the; boroughs, the court held that no one-man, one-vote requirement was violated. Cf. Clark County v. City of Las Vegas (1978), 94 Nev. 74, 77, 574 P.2d 1013, 1015, where the Supreme Court of Nevada held that any right of a constituent unit to representation on a consolidated government applied if the governing body was elected but not when it was appointed.

Hagnauer also contends that the district is in any event exempt from the one-man, one-vote rule because it is a special-purpose unit of government. In this connection Hagnauer calls our attention to Citizens to Save Our Land v. McKee Creek Watershed Conservancy District (1976), 37 Ill. App. 3d 935, where the Appellate Court for the Fourth District upheld the validity of the River Conservancy Districts Act (Ill. Rev. Stat. 1965, ch. 42, par. 383 et seq.). The appeUate court’s decision was based on two separate considerations, that the conservancy district was a special-purpose unit of government, and that the functions performed by its trustees were “essentially nonlegislative.” 37 Ill. App. 3d 935, 941.

As we have previously noted, the Supreme Court has rejected a distinction between legislative and administrative functions as being significant in this context (Hadley v. Junior College District (1970), 397 U.S. 50, 55-56, 25 L. Ed. 2d 45, 50, 90 S. Ct. 791, 794-95), and that criterion was not resurrected by Salyer. We agree with the appellate court, however, that the conservancy district, so far as its purposes are concerned, satisfies the standard stated in Salyer. The same may be said of the district presently involved. While the latter does possess some “typical governmental powers,” such as the power of eminent domain, the power to levy property taxes, and the power to issue bonds (Ill. Rev. Stat. 1977, ch. 42, pars. 502—7, 505—1, 505—2), these powers exist as means of fulfilling the district’s basic purposes of protecting against the overflow of water and disposing of water, sewage, and other drainage (Ill. Rev. Stat. 1977, ch. 42, pars. 502—2, 502—3). The district does not provide general public services such as schools, housing, transportation, and the like. Cf. Salyer Land Co. v. Tulare Lake Basin Water Storage District (1973), 410 U.S. 719, 728-29, 35 L. Ed. 2d 659, 666-67, 93 S. Ct. 1224, 1229-30.

Whether the district meets the other test referred to in Salyer that there be a “disproportionate effect of its activities” on landowners or some other identifiable group cannot be determined on the basis of the record here. This case was decided on a motion for summary judgment, and that motion was not supported by affidavits. The circuit court, unlike the district court in Salyer (see 342 F. Supp. 144, 145), thus did not have before it any delineation of the relevant facts, such as the location of the district’s facilities and of the area which these serve. Because of the conclusion which we have reached earlier in this opinion it is unnecessary to pursue further the question of the district’s status as a special-purpose district.

The judgment of the circuit court is accordingly reversed and the cause is remanded with directions to dismiss the complaint.

Reversed and remanded, with directions.

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


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 51091.
    BILL R. CARVER, Appellant, v. ROY D. FERGUSON et al., Appellees.

      Opinion filed May 18, 1979.

      Hoagland, Maucker, Bernard & Almeter, of Alton (J'ames K. Almeter, of counsel), for appellant.
    Cox & Bassett, P.C., of Wood River, for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Petitioner, Bill R. Garver, filed in the circuit court of Madison County a petition to vacate (Ill. Rev. Stat. 1975, ch. 10, par. 112) or modify (Ill. Rev. Stat. 1975, ch. 10, par. 113) an arbitration award of $26,400 in favor of respondents, Roy D. Ferguson and R. Gene Cobbel, d/b/a Ferguson-Cobbel Construction. The circuit court denied the petition, confirmed the award, and entered judgment in favor of respondents and against petitioner in the amount of $26,400, together with interest from the date of the award. Petitioner appealed, the appellate court reversed and remanded for re arbitration before a new panel of arbitrators (63 Ill. App. 3d 453), and we allowed respondents’ petition for leave to appeal.

On February 25, 1975, petitioner, as owner and architect, entered into a contract with respondents, as contractors, for the construction of a house on petitioner’s lot. The contract provided for a price of $45,669 and that all work should be of good quality and in conformance with the contract documents, which included the plans and specifications "prepared by petitioner, an architectural engineer. It also provided that if the contractor substantially violated the contract, the owner, after giving the contractor seven days’ written notice, could terminate the contractor’s employment and finish the work by whatever method the owner deemed expedient, any additional costs to be paid by the contractor. The contract further provided:

“All claims, disputes, and other matters in question arising out of, or relating to, this Contract or the breach thereof except *** with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment *** shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association ***. *** [T]he award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.”

Shortly after construction began, disputes arose between the parties. Petitioner accused respondents of numerous violations of the specifications regarding the footings and basement walls; petitioner charged that as a result of the contractor’s work, the footings were too thin, the concrete used in the walls was too watery, and the walls themselves were out of plumb and out of line. Petitioner also charged that the waterproofing used on the basements walls was inferior to the grade required under the detailed waterproofing specifications contained in the contract. Petitioner continued to complain to the respondents of their noncompliance with the contract, both orally and by letter. Petitioner alleged that the wood framing was deficient; that the tub and shower were defectively installed; that the roof flashing was too thin and had been cut when installed; and that the roofing paper was torn and improperly laid. On June 10, 1975, following the dispute regarding the roof, petitioner terminated the contract and had the sheriff remove respondents’ employees from the property. Petitioner attempted to obtain bids to finish the construction, but was unable to find a contractor who would complete the house unless paid for “time and material.” On this basis petitioner employed another contractor, paying him $47,040. The house was eventually completed at a total cost to petitioner of $59,222.

On March 1, 1976, respondents filed a demand for arbitration. Alleging that “work stoppage and refusal to pay by the owner were without reasonable cause,” respondents claimed that there was due them the sum of $45,000. Petitioner denied liability and counterclaimed in the amount of $18,211.30, the amount by which his total construction costs exceeded the contract price, after adjustment for items furnished by petitioner and for materials not used by respondents. The parties selected three arbitrators, but when one arbitrator did not appear the parties agreed to proceed with a two-member panel comprised of an architect and a building contract estimator. Although no stenographic record was kept at the arbitration hearing, petitioner made a tape recording from which a transcript was later typed. After a two-day hearing, the arbitrators entered an award in favor of respondents for $26,400, stating only that the award was “in full settlement of all claims and counterclaims submitted to this arbitration.” The arbitrators made no findings of fact or law.

Petitioner filed a petition in circuit court to vacate or modify the award alleging that one of the arbitrators was partial and that the arbitrators exceeded their powers. Respondents filed an answer and counterpetition, asking that the arbitration award be confirmed and judgment entered upon it. Respondents’ petition was granted.

The appellate court found that the arbitrators “exceeded their power and did not arbitrate on the basis of the contract” (63 Ill. App. 3d 453, 457), that the breach of contract was entirely due to respondent’s failure to follow the contract specifications, and remanded the cause to the circuit court “to implement arbitration before a new panel of arbitrators.”

Section 12(a) of the Uniform Arbitration Act (Ill. Rev. Stat. 1975, ch. 10, par. 112(a)) provides:

“(a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5, as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 2 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.”

Prior to the enactment of the Uniform Arbitration Act, section 11 of “An Act to revise the law in relation to arbitrations and awards” (Ill. Rev. Stat. 1959, ch. 10, par. 11) provided that a court could vacate an award if “obtained by fraud, corruption or other undue means”; if “any legal defects shall appear in the award”; or if “such arbitrators misbehaved.” Although appearing to vest a court with broader powers to vacate an award than does the present statute, the prior provision was given an interpretation consistent with the present act. (Ill. Ann. Stat., ch. 10, par. 112, Historical and Practice Notes, at 442 (Smith-Hurd 1975).) While this court has not previously construed section 12(a)(3) of the Uniform Arbitration Act in determining whether arbitrators have “exceeded their powers,” we find guidance in its earlier decisions.

A long line of cases has established that an arbitrator’s award will not be set aside because of his errors in judgment or mistakes of law or fact. In the early case of Merritt v. Merritt (1850), 11 Ill. 565, 567, the court said:

“The fact that arbitrators have made an erroneous decision will not vitiate their award. If they have acted in good faith, the award is conclusive upon the parties; and neither party is permitted to avoid it, by showing that the arbitrators erred in their judgment, either respecting the law or the facts of the case.”

In Sherfy v. Graham (1874), 72 Ill. 158, after enumerating the limited grounds for vacating an arbitrator’s award (essentially the same as are found in section 12 of the Uniform Arbitration Act), the court added, “Nor will a mistake of law or fact by the arbitrators be ground for setting aside an award, but a mistake in the draft of the award may be reformed so as to conform to the award actually made by the arbitrators.” (72 Ill. 158, 160; accord, Podolsky v. Raskin (1920), 294 Ill. 443, 454; White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 602.) Similar statements are contained in the recent opinions of those courts whose jurisdictions have also adopted the Uniform Arbitration Act: School Committee v. Korbut (1977), 373 Mass. 788, 792-93, 369 N.E.2d 1148, 1151; University of Alaska v. Modern Construction, Inc. (Alaska 1974), 522 P.2d 1132, 1140; Grudem Brothers Co. v. Great Western Piping Corp. (1973), 297 Minn. 313, 316-17, 213 N.W.2d 920, 922-23, 80 A.L.R.3d 147, 151; Smitty’s Super-Valu, Inc. v. Pasqualetti (1974), 22 Ariz. App. 178, 180-81, 525 P.2d 309, 311-12. The Act is to be construed so as “to make uniform the law of those states which enact it.” (Ill. Rev. Stat. 1975, ch. 10, par. 120.) Opinions of the courts of other jurisdictions are therefore shown greater than usual deference.

A review of the authorities demonstrates the courts’ desire that, if possible, disputes be settled without litigation and the clear intent that judicial review of an arbitrator’s award be more limited than appellate review of a trial court’s decision. (Bernhardt v. Polygraphic Co. of America (1956), 350 U.S. 198, 203, 100 L. Ed. 199, 205, 76 S. Ct. 273, 276.) As the United States Supreme Court has observed:

“Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settling disputes it should receive every encouragement from courts of equity. If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error either in law or fact. A contrary course would be a substitution of the judgment of the Chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation.” (Burchell v. Marsh (1854), 58 U.S. (17 How.) 344, 349, 15 L. Ed. 96, 99.)

This same rationale applies here, and the contractual provision that in the event of arbitration “the award rendered by the arbitrators shall be final” should govern.

It is clear that the matter before the arbitrators was within the scope of the arbitration provision of the contract which referred to arbitration “all claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof,” excluding two matters not relevant here — artistic effects and claims waived by the making of final payment. The question remains, however, whether, as the appellate court majority concluded, the arbitrators formed their award without reference to the terms of the contract.

The chairman of the committee that drafted the Uniform Arbitration Act, writing in explanation of section 12(a)(3), has framed the inquiry in the following terms:

“[T] he question for the court is whether the construction of the contract made by the arbitrator is a reasonably possible one that can seriously be made in the context in which the contract was made. Stated affirmatively, if all fair and reasonable minds would agree that the construetion of the contract made by the arbitrator was not possible under a fair interpretation of the contract, then the court would be bound to vacate or refuse to confirm the award.” Pirsig, Some Comments on Arbitration Legislation and the Uniform Act, 10 Vand. L. Rev. 685, 706 (1957).

Applying this standard, we cannot say that the arbitrators in rendering their award unfairly interpreted the contract. The evidence presented before the arbitrators was copious and technical. For nearly every claim raised by petitioner, respondents offered an explanation in justification or mitigation. For example, respondents contended that the defects in the concrete complained of by petitioner were the result of instructions by petitioner, who was frequently on the job site when the concrete was poured; that the waterproofing specified by the contract could not be applied in the weather conditions prevailing at the time of the construction; and that several of the admitted defects could have been remedied had respondents been allowed to finish the house. The parties also disagreed widely on the percentage of completed construction; in answer to petitioner’s claim that the house was 40% complete when the contract was terminated, respondents maintained that they had completed 70% of the house. The arbitrators were experts in the construction industry and were well qualified by experience to understand the claims of each side. Admittedly, if respondents substantially violated the contract it was properly terminated by petitioner, and respondents were responsible for the cost of completion. The evidence produced by both parties on the issue of whether respondents substantially violated the contract was capable of more than one interpretation.

Whenever possible a court must construe an award so as to uphold its validity (Merritt v. Merritt (1850), 11 Ill. 565), and gross errors of judgment in law or a gross mistake of fact will not serve to vitiate an award unless these mistakes or errors are apparent upon the face of the award. (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578.) Upon applying these rules we find no basis for disturbing the award of the arbitrators in this case.

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

Appellate court reversed; circuit court affirmed.


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

text:
    (Nos. 50195, 50403 cons.
    JUSTIN KAUFMANN et al., Appellees, v. ECONOMY FIRE AND CASUALTY COMPANY, Appellant.-JANET BOHNEN SALERNO, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.

      Opinion filed May 18, 1979.

      UNDERWOOD and RYAN, JJ., dissenting.

      Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, John D. Daniels and David A. Novoselsky, of counsel), for appellant.
    Robert Higgins, of Chicago (Sidney Z. Karasik, of counsel), for appellees.
    James J. Hoffnagle, of Taylor, Miller, Magner, Sprowl & Hutchings, of Chicago, for appellant.
    Michael J. McArdle and Donald R. Crowe, of Mahoney & McArdle Chartered, of Chicago, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In cause No. 50195, defendant, Economy Fire and Casualty Company (hereafter Economy), appealed from the judgment of the circuit court of Cook County entered in favor of plaintiffs, Justin Kaufmann, Geraldine Kaufmann, Daniel E. Kaufmann and Judd Kaufmann, in an action for declaratory judgment. The appellate court affirmed (52 Ill. App. 3d 940), and we allowed Economy’s petition for leave to appeal. In cause No. 50403, defendant, State Farm Mutual Automobile Insurance Company (hereafter State Farm), appealed from a similar judgment entered in favor of plaintiff, Janet Bohnen Salerno. The appellate court affirmed (55 Ill. App. 3d 735), and we allowed State Farm’s petition for leave to appeal. The causes were consolidated for argument and opinion.

On March 9, 1973, Economy issued to plaintiffs Justin and Geraldine Kaufmann a policy of automobile liability insurance which included uninsured motorist coverage with limits of $10,000 for each person and $20,000 for each accident. On December 26, 1973, Economy issued to plaintiff Daniel Kaufmann a similar policy which included identical uninsured motorist coverage. Although at the time the policy was issued to plaintiffs Justin and Geraldine Kaufmann, Daniel Kaufmann did not reside with his parents, it appears from the pleadings that after May 1, 1973, he had at all times resided with them.

On November 10, 1974, an uninsured motorist struck an automobile owned and operated by Daniel, and he, his parents and his brother, Judd, were injured. Economy admitted liability under the uninsured motorist coverage in Daniel’s policy, but refused to pay additional amounts under the policy issued to his parents. Plaintiffs sought a declaration that the limits of liability under the uninsured motorist coverage of each policy, $10,000 per person and $20,000 per accident, could be cumulated so as to provide coverage of $20,000 per person and $40,000 per accident despite an “other insurance” clause in Justin and Geraldine’s policy which provided:

“Other Insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV [uninsured motorist coverage] shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

In cause No. 50403, defendant, State Farm, had issued to plaintiff, Janet Salerno, a policy of automobile liability insurance effective August 21, 1973, and at other times during 1973 had issued to Janet’s father, Howard Bohnen, two similar policies, providing coverage for two automobiles owned by him. Each of the three policies provided uninsured motorist coverage of $10,000 per person and $20,000 per accident, and contained an “other insurance” provision virtually identical to the one set forth above. On December 30, 1973, Janet, while a passenger in an uninsured automobile, was injured when that automobile was struck by another uninsured vehicle. It is undisputed that at the time of the accident Janet resided with her father.

The circuit court entered judgments holding the uninsured motorist coverage provided in the policy issued to Justin and Geraldine Kaufmann and in the policies issued to Howard Bohnen applicable to the respective accidents, and the appellate court affirmed.

Defendants contend that under Morelock v. Millers’ Mutual Insurance Association (1971), 49 Ill. 2d 234, the judgments of the circuit and appellate courts must be reversed. Plaintiffs contend that the “other insurance” clauses are ambiguous and ineffective to prevent aggregated coverage under policies issued by the same insurer to members of the same family and that “other insurance” clauses which purport to preclude the aggregating of uninsured motorist coverage are contrary to public policy, repugnant to the uninsured motorist statute, and void.

In Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, the court considered the various types of “other insurance” clauses found in uninsured motorist coverages, and in its discussion criticized certain resolutions of the conflicts created by the various policy provisions for the reason that they “place no emphasis whatever on the most significant factor of all — the intent of the parties” (48 Ill. 2d 71, 78).

In Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, the insurer had issued three automobile liability insurance policies to the plaintiff, covering three separate vehicles. Plaintiff’s wife, while a pedestrian, was struck and killed by an uninsured motorist. The “other insurance” provision in the policies was identical to those here involved. The court concluded that the “excess insurance” provision was not applicable because at the time of the accident in question the insured was not occupying an automobile. In considering the pro rata provision the court pointed out that one insurer had issued three different policies, on three separate vehicles, to the one insured, that each policy provided separate uninsured motorist coverage, and that a separate premium was accepted by the insurer for those coverages. The court went on to say:

“An insurance policy is not to be interpreted in a factual vacuum; it is issued under -given factual circumstances. What at first blush might appear unambiguous in the insurance contract might not be such in the particular factual setting in which the contract was issued. Jensen v. New Amsterdam Insurance Co. (1965), 65 Ill. App. 2d 407, 415.
When an insured purchases three distinct policies from an insurer, each providing the specified coverage, and pays a separate premium for each, does he reasonably contemplate that the ‘other insurance’ clauses therein are effective to reduce his recovery to what he would have obtained under one policy? We think not. The apparent purpose of ‘other insurance’ clauses is to make certain that one company does not pay a disproportionate amount of a loss which is to be shared with another company. There is no purpose in proration unless the ‘other insurance’ is written by another company. The clause has no meaningful purpose when applied to coverage issued by one company to one insured. In this situation its meaning is ambiguous, and the clause should be construed in favor of the insured.” 57 Ill. 2d 330,336.

Under the definitions therein contained, each Kaufmann plaintiff was an “insured” under each of the policies. Under the definitions contained in the policies issued to her father, plaintiff Salerno was also an insured. Under these circumstances, as in Glidden, the meaning of the clause is ambiguous and should be construed in favor of the insureds. As the court said in Glidden:

“It is true that an insured might end up in a case such as this in a better situation than if the wrongdoer had been insured to the minimum requirements of the Financial Responsibility Law. That, however, is not material as long as he pays for the coverage. The insured is better off because he paid additional premiums. If there is to be a ‘windfall’ in this situation, it should be to the insured, who paid the several premiums, rather than to the insurer, which collected them.” 57 Ill. 2d 330, 336.

As the court said in Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, in the payment of multiple premiums the insured must have expected to receive, and the insurer to provide, additional insurance benefits. Here, where each of the plaintiffs was an insured under each of the policies issued by the same insurer, each of which provided uninsured motorist coverage for which premiums were collected, we hold that the “other insurance” clause is inapplicable.

It cannot be determined from the opinion in Morelock v. Millers’ Mutual Insurance Association (1971), 49 Ill. 2d 234, whether the plaintiff, Kathryn F. Morelock, was an insured under the definitions contained in her father’s policy. To the extent that Morelock is contrary to the holding of this case, it is expressly overruled.

Because of the conclusion reached with respect to the “other insurance” provision, we need not and do not consider plaintiffs’ contentions that the provision is contrary either to the statute or public policy. The judgments of the appellate court are affirmed.

Judgments affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

Until the filing of this opinion, this court has consistently held that uninsured motorist coverages in several policies could be “stacked” only when those policies had been issued to the same person by the same company. (Morelock v. Millers’ Mutual Insurance Association (1971), 49 Ill. 2d 234; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330; Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167.) Today the court overrules Morelock and holds, for the first time, that the coverages in different policies issued to different people at different times may be added together despite the presence of clauses in those policies to the contrary. I thought Morelock was correctly decided, and I would adhere to it.

MR. JUSTICE RYAN joins in this dissent.


text:
    (No. 51311.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ELIJAH BAPTIST, Appellee.

      Opinion filed May 18, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, and Marcia B. Orr, Thomas V. Gainer, Jr., and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Robert T. Badesch and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Following a jury verdict of guilty, defendant was convicted, in the circuit court of Cook County, of the offenses of murder and attempted armed robbery in connection with the shooting death of Sam Blue. He was sentenced to 60 to 80 years in the penitentiary. The appellate court reversed (63 Ill. App. 3d 953), and we granted the State leave to appeal.

The State contests both of the appellate court’s alternative grounds for reversal of defendant’s conviction, which were: (1) the trial court erred in allowing testimony of a prosecution witness regarding the contents of a letter which had not been received in evidence; and (2) the opening statement of the prosecutor resulted in substantial prejudice to the defendant.

At approximately midnight on the night of July 28, 1974, Sam Blue died of a bullet wound in the chest while outside his grocery store on the corner of 60th Place and Halsted Street in Chicago. A somewhat detailed review of the testimony is necessary.

For the State, Leo Carter testified as follows. On the evening of July 28, 1974, between 11:30 p.m. and midnight, Carter was standing on a basketball court across the street from Blue’s grocery. Defendant, whom Carter had known for over a year, stood nearby talking to two others. Blue was standing outside his store talking to a woman. When the woman left, defendant and his two companions crossed the street and approached Blue. Carter saw the defendant grab Blue around the neck and put his hand up to Blue’s head, but could not determine whether defendant had a gun in his hand. Defendant and Blue wrestled briefly, and a gun was fired. The two individuals who had been with defendant ran down Halsted Street, while defendant ran in another direction. Blue began to chase and shoot at the defendant but, after firing three or four shots, fell near the side of his store.

Subsequent to the shooting, Carter testified he and Leslie Scott, also an eyewitness, went to Carter’s house and then to a local lounge. There they again saw defendant, who had since removed his shirt. While at the lounge, Carter learned that Blue had died. After a short while, Carter and Scott left the lounge and were thereafter stopped by the police. At that time, Carter, because he did not want to get involved, told the police that he knew nothing about the shooting of Blue. Upon being taken to the hospital, however, and being shown Blue’s body, he told the police that defendant, while in the company of two others, had shot Blue. Later at the police station, Carter gave the police a written statement to that effect. The police presented a group of photographs to Carter, who identified defendant out of this group as the man who shot Blue. Carter again identified the photo at trial, and made an in-court identification of the defendant.

Carter stated that, on September 23, 1974, both he and Scott testified at defendant’s preliminary hearing in connection with the Blue shooting.

Over defendant’s objection made in a motion in limine on the first day of trial, Carter testified to an occurrence on June 14, 1975. On that date, at approximately midnight, Carter was with his brother Henry and Leslie Scott behind a building in the 600 block of West 60th Place. Defendant’s brother, Michael Baptist, and three others, Wayne Lindsey, Lenox Lawrence and John Perkins, forced Scott and the two Carter brothers to stand against the wall of the building. Lindsey drew a gun and shot Leo Carter in the head and back. Leo’s brother Henry and Leslie Scott were similarly shot. Leo survived, but Henry and Scott died as a result of the shootings.

Leslie Scott’s preliminary hearing testimony was introduced by the State, and reads as follows. While standing in the vicinity of 60th Place and Halsted on the night of the Blue shooting, Scott was approached and asked by defendant if he wanted to assist defendant in a robbery. Defendant displayed a handgun during this conversation. Scott declined and walked away from defendant toward a vacant lot about 50 feet from where Blue was standing. Scott stated that, although it was dark, there were street lights on the corner and, when he looked back, Scott saw defendant and the two others approach Blue. It appeared to Scott that defendant put the gun to Blue’s head. Scott heard three shots, saw Blue start to run after defendant, and then saw Blue fall.

Annie Carter, Leo’s sister, also testified at trial for the State. She had known the defendant and his brother Michael for two or three years. Over defendant’s objection, Annie stated that, in late August of 1974, the month following the Blue shooting, she received a letter that had been mailed to her. The return bore defendant’s name and address at the Cook County jail. The letter was signed at the bottom with the name “Eli,” the name by which Annie knew the defendant. It stated that he liked Annie and her family but that, if Leo testified against him, he would have his brother and cousin do something to her family. Annie stated further that she did not show the letter to the police prior to Leo’s shooting because she did not know that anything was going to happen to her brother and that, after her brother was shot, she did not show the letter to police because she was afraid. It was only one day prior to trial that Annie told the prosecution about the letter. We note that the record indicates the letter was made known to the court during defendant’s motion in limine, referred to earlier. Annie testified that she could not produce the letter because it was engulfed in a fire that destroyed her house about two weeks earlier.

Investigator Kentalla of the Chicago Police Department testified that at approximately 1 a.m., on July 29, 1974, he was assigned to investigate a homicide in the vicinity of 60th Place and Halsted. He testified that, at the comer location of Blue’s grocery store, he found a small pool of blood on the sidewalk alongside of the building. The investigator also stated that he displayed to Leo Carter the photographs from which Leo had identified the defendant and otherwise fully corroborated Leo’s testimony regarding Leo’s identification of the photograph of defendant.

The final witness for the State, Investigator Herman of the Chicago Police Department, testified as to the June 14, 1975, shootings of Leslie Scott and the Carter brothers. He stated that he discovered the bodies identified as Henry Carter and Leslie Scott, then went to the hospital and talked to Leo Carter. Michael Baptist, Wayne Lindsey, Lenox Lawrence and John Perkins were subsequently arrested for these shootings.

Carl Dawson, a correctional officer at the Cook County jail, was called as a defense witness. Dawson testified that on July 28, 1974, he had worked the evening shift, and, upon leaving work at about midnight, drove his automobile toward his destination at 71st Street and Halsted. En route, traveling at approximately 25 miles per hour, he passed the intersection of 60th Place and Halsted. He observed a man standing against a wall, his hands in the air, and three men facing him, then saw three flashes from a gun and heard the shots. After traveling a short distance, Dawson made a U-tum and returned to the scene. He saw three individuals run in the same direction on 60th Place and into an alley. He searched for and located a police car nearby, told the two officers in the car about the shooting, and then proceeded to his destination. Shortly thereafter, he returned to the scene and gave a statement to a police officer in which he said he had seen three men shoot another man and run away. He testified to having described the three assailants as being a little shorter than the victim and dark complected.

Other than calling the police station a few days later to learn what happened to the victim, Dawson had no further contact with the police. His next contact with authorities occurred a year or more after the shooting, when he was first contacted by the public defender who represented the defendant.

Asked at trial whether defendant was one of the three Blue assailants, Dawson stated that, to the best of his knowledge, he was not; that defendant was “too tall and too light.”

The other witness called by the defense was Sergeant Heard of the Chicago Police Department, who testified and confirmed that Dawson was present at the scene. He stated that, in filling out a police report on the Blue shooting, he talked to Dawson. While referring to the report, the sergeant testified that Dawson had indicated that the height of the three assailants averaged somewhere between five feet and five feet nine inches.

The State contends that the trial court properly admitted into evidence Annie Carter’s testimony as to the contents of the letter she allegedly received from the defendant. Although its opinion does not so state, it is evident that the appellate court’s ruling regarding the letter was based on the so-called “best evidence” rule. The appellate court held that Annie’s explanation that the letter had been destroyed was insufficient to serve as a basis for allowing her to testify to the letter’s contents. To introduce secondary evidence of the letter, it was incumbent upon the State to prove the prior existence of the original and also its unavailability. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 199.) Here, the State presented the testimony of Annie Carter, the purported recipient and custodian of the letter, who stated approximately when she received it, described the return name and address, and described the signature. She further testified to the reason for the letter’s unavailability, namely, its destruction by fire. Defense counsel offered nothing on cross-examination or rebuttal to contravene Annie’s testimony, nor did he suggest to the trial court what more, if anything, should have been required by the State. When a party seeks to introduce secondary evidence of a writing, the sufficiency of the evidence showing that it is not within the offering party’s power to produce the original depends upon the circumstances of each case and is, to some degree, within the discretion of the trial court. (Maxcy-Barton Organ Co. v. Glen Building Co. (1934), 355 Ill. 228, 238.) In our opinion, under the circumstances of this case a sufficient foundation was laid to permit the introduction of parol evidence of the contents of the letter. See generally People v. Carter (1968), 39 Ill. 2d 31, 36-37 (sufficient foundation was laid for the introduction of a multilith copy of defendant’s typed confession where the prosecution stated that the original was destroyed after copies had been made because an original does not hold up very long); Felix v. Caldwell (1908), 235 Ill. 159; Forsyth v. Vehmeyer (1898), 176 Ill. 359, 361-63, aff'd (1900), 177 U.S. 177, 44 L. Ed. 723, 20 S. Ct. 623 (parol evidence of the contents of court records allowed where the records were destroyed by fire).

Before considering the appellate court’s alternative ground for reversal of defendant’s conviction, we address defendant’s other argument that relates to the testimony regarding the letter. Defendant argues that the trial judge erred in allowing the prosecution to introduce evidence of the shootings of Leslie Scott and the Carter brothers. It is true that, as a general rule, evidence of other crimes committed by defendant, independent of the crime for which he is being tried, is inadmissible. (People v. Tranowski (1960), 20 Ill. 2d 11, 16, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290, cert. denied (1962), 368 U.S. 978, 7 L. Ed. 2d 440, 82 S. Ct. 484; People v. Lehman (1955), 5 Ill. 2d 337, 342.) If relevant, however, for any purpose other than to show propensity to commit a crime, evidence of other crimes is admissible. (People v. McDonald (1975), 62 Ill. 2d 448, 455.) Evidence that defendant attempted to kill eyewitnesses to the Blue shooting is relevant and therefore admissible, in that it shows a consciousness of guilt. (People v. Spaudling (1923), 309 Ill. 292, 302-06. See also People v. Fiorito (1952), 413 Ill. 123, 131.) Thus, if the June 14, 1975, shootings of Leslie Scott and the Carter brothers can be connected to defendant, evidence of these shootings is admissible. The evidence of defendant’s letter to Annie following his arrest and prior to the preliminary hearing, threatening to have his brother and cousin harm the Carter family if Leo testified, was evidence establishing this connection. Consequently, the trial court properly allowed evidence of the subsequent shootings to go to the jury. It must be remembered that, inasmuch as defendant was not on trial for these shootings, the State need not establish this connection beyond a reasonable doubt. (People v. Spaulding (1923), 309 Ill. 292, 303.) Defendant’s reliance on People v. Hairston (1970), 46 Ill. 2d 348, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658, which involved the sufficiency of evidence to support a conviction fob solicitation of murder and attempted murder, is therefore misplaced.

We turn now to the appellate court’s alternative ground for reversal: that the prosecutor’s opening statement resulted in substantial prejudice to the defendant.

In his opening statement, the prosecutor made the following remark:

“I further expect and submit to you that you will be shown that Carl Dawson, the Defense Witness, is a liar and is guilty of indictable perjury.”

Immediately following the remark, the trial court sustained defendant’s objection, ordered the remark stricken, and instructed the jury to disregard it. We deem such comment on a witness to be highly improper. Furthermore, we are cognizant of the growing concern over improper prosecutorial arguments. (See, e.g., United States v. Spain (7th Cir. 1976), 536 F.2d 170, 174-76, cert. denied (1976), 429 U.S. 833, 50 L. Ed. 2d 97, 97 S. Ct. 96; Singer, Forensic Misconduct by Federal Prosecutors— And How it Grew, 20 Ala. L. Rev. 227 (1968).) Nevertheless, improper remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Nilsson (1970), 44 Ill. 2d 244, 248, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881; People v. Naujokas (1962), 25 Ill. 2d 32, 38; People v. Sicks (1921), 299 Ill. 282, 285-86.) “Each case of this kind must be decided upon its own facts.” People v. Weathers (1975), 62 Ill. 2d 114, 120.

We hold that, while the prosecutor’s remark was in error, it did not constitute reversible error in this case. Evidence of defendant’s guilt was overwhelming. The only issue was one of identification. Two eyewitnesses, Leo Carter and Leslie Scott, both testified positively that defendant was the person who shot Blue. Their testimony was consistent and unimpeached. The evidence linking defendant with the subsequent shootings of these two eyewitnesses foEowing their testimony at defendant’s preliminary hearing further establishes defendant’s guilt. We do not rely, however, solely on this positive evidence of guilt. Carl Dawson’s testimony also must be considered. He testified that, to the best of his knowledge, defendant was not one of the three assailants. On cross-examination, however, Dawson admitted that as he passed through the intersection at the time of the shooting he was able to get a mere glance at what was taking place. He admitted that at no time (neither when he first went by nor when he returned to the scene) did he get a look at any face. Dawson’s testimony was further impeached in several other important respects with statements he gave to defendant’s attorney and with statements he gave to the prosecution just one week prior to trial. After reviewing Dawson’s testimony and the record in to to, we are convinced that, even absent the prosecutor’s improper remark, no reasonable jury would have given credence to Dawson’s opinion that defendant was not one of Blue’s assailants. We conclude, therefore, that the prosecutor’s remark did not prejudice defendant to the point of constituting reversible error.

Additionally, although the prejudicial effect of an improper argument cannot always be erased from the minds of the jurors by an admonishment from the court (People v. Garreau (1963), 27 Ill. 2d 388, 391), the act of promptly sustaining the objection and instructing the jury to disregard such argument has usually been viewed as sufficient to cure any prejudice. See People v. Hampton (1969), 44 Ill. 2d 41, 45-46; People v. Daugherty (1969), 43 Ill. 2d 251, 255-56; People v. Underhill (1967), 38 Ill. 2d 245, 252-53, cert. denied (1968), 391 U.S. 912, 20 L. Ed. 2d 651, 88 S. Ct. 1803; United States ex rel. Clark v. Fike (7th Cir. 1976), 538 F.2d 750, 759, cert. denied (1977), 429 U.S. 1064, 50 L. Ed. 2d 781, 97 S. Ct. 791; Vess, Walking a Tightrope: A Survey of Limitations on the Prosecutor’s Closing Argument, 64 J. Crim. L. & Criminology 22, 53-54 (1973).

In connection with his argument that the trial court erred in permitting the introduction of evidence of the subsequent shootings, the defendant argues that he was prejudiced by the repeated mention of these shootings during opening statement and closing argument. After reviewing the complained-of statements, we hold that all of them were either within the range of permissible comment on the evidence or the subject of objections which were sustained.

For the foregoing reasons, we reverse the judgment of the appellate court. In view of the appellate court’s disposition of the case, the cause is remanded to that court with directions to decide any remaining issues raised there by defendant.

Reversed and remanded, with directions.