author: MR. JUSTICE RYAN MR. JUSTICE MORAN,

text:
    (No. 50479.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ARTHUR R. ROBERTS, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHESTER L. GRIZZLE, Appellee.

      Opinion filed Feb. 20, 1979.

    Rehearing denied March 30, 1979.

      MORAN, J., concurring in part and dissenting in part.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Steven Jay Teplinsky, Assistant Attorneys General, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, of the Office of State Appellate Defender, of Springfield (Barbara A. Chasnoff and Daniel D. Yuhas, Assistant Defenders, of counsel), for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

These consolidated cases again present the problem of attempted-murder instructions which we considered recently in People v. Harris (1978), 72 Ill. 2d 16, People v. Trinkle (1977), 68 Ill. 2d 198, and People v. Muir (1977), 67 Ill. 2d 86. Both defendants here, Arthur R. Roberts and Chester L. Grizzle, were convicted at jury trials of attempted murder in violation of section 8—4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8—4). The appellate court consolidated these appeals — Roberts’ on direct appeal from a conviction entered by the Logan County circuit court, Grizzle’s on appeal from a denial of a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122—1 et seq.) in the Jersey County circuit court. The appellate court reversed the trial courts and remanded for new trials, holding that the trial judges erred in their attempted-murder instructions. (56 Ill. App. 3d 667.) Both the majority and the concurring opinions in our recent Harris case support the appellate court’s finding of error in the instructions given. We granted the People leave to appeal and now reverse the appellate court. The issue before us is whether a criminal defendant can raise on direct appeal, or on appeal from the dismissal of a petition for a post-conviction hearing, alleged error in jury instructions when that error was not objected to at trial and not preserved in the post-trial motions.

A jury in Logan County found Arthur Roberts guilty of attempted murder. At his trial, the complaining witness, a truck driver, testified that he had been driving on the interstate highway near Lincoln on the night of the incident. Late that night his truck had jockeyed for highway position for a considerable length of time with a car driven by Roberts, a car in which Carla Rackers rode as a passenger. About 2 a.m., the truck came alongside the driver’s side of the car in an attempt to pass. Suddenly the truck driver heard an extremely loud crashing sound against the passenger door of his truck, and the car then accelerated rapidly away from the truck. Both the driver of the car and his passenger were seen to be in the car’s front seat. Moments later at a truck stop, the complaining witness found a large bullet hole in the truck’s door directly in line with his body. He called the police. State patrol officers arrested Roberts shortly thereafter, searched his car and found, among other guns, a 357 Magnum Colt revolver — a powerful handgun. At trial, the prosecution proved that the bullet which pierced the truck door’s outer panel, and severely dented the inner panel, had been fired from that revolver.

Defendant Roberts, and his 17-year-old passenger, Carla Rackers, also testified at trial. Both admitted the gun was fired from the car, but both said Carla Rackers fired from the rear seat, where she had been taking a nap when she was disturbed by the truck. She had not been charged with attempt. The State contended that she handed the gun to Roberts and was thus tried only for conspiracy.

The court’s instructions to the jury included the following mandatory instructions on the offense of attempted murder:

“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and
Second: That the defendant did so with intent to commit the crime of murder.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

The court also gave the following instruction defining murder:

“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,
(1) he intends to kill or do great bodily harm to that individual; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that individual.”

As we held in Harris, it was error to give this instruction defining murder. Since attempted murder requires a specific intent to commit the offense of murder, which necessarily involves a killing, it is obvious that the offense of attempted murder cannot be construed as incorporating the alternative definitions of murder contained in section 9—1 (a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9—1 (a)), which incorporates a state of mind other than an intent to kill. (People v. Harris (1978), 72 Ill. 2d 16, 24.) Roberts did not object to the giving of this instruction and did not raise that issue in his post-trial motion.

An incident of shooting also resulted in Grizzle’s conviction of attempted murder in Jersey County. Witnesses testified at his trial that Grizzle had experienced a great deal of trouble with a car recently purchased from the complaining witness. On the day of the shooting a heated conversation occurred between the two men regarding that car. Late that evening 10 to 12 shots were fired into the complaining witness’ house, many of those shots narrowly missing the witness, his wife, and his small child as they moved around the house seeking safer locations.

The jury instructions given in Grizzle’s case were quite similar to the instructions given in Roberts’ case, and contained the same error. Grizzle’s trial also occurred before this court’s series of attempted-murder decisions. As in Roberts’ case, the defendant did not object to the instructions at the trial and did not preserve the objection in a post-trial motion. On direct appeal from his conviction, Grizzle did not raise the point and his conviction was affirmed. In a subsequent petition for a post-conviction hearing, Grizzle’s counsel again did not raise the issue and relief was denied. However, on appeal from this denial, new counsel for Grizzle raised the issue of the instructions, and the appellate court considered this issue. On this appeal, we are not concerned with the correctness of the appellate court’s action in doing so. See Ill. Rev. Stat. 1977, ch. 38, par. 122—3.

In People v. Goerger (1972), 52 Ill. 2d 403, this court was faced with an issue similar to that raised in Grizzle’s appeal. In that case the defendant had not objected to the giving of an instruction at trial and there had been no direct appeal. The error in the giving of the instruction was raised in a petition under the Post-Conviction Hearing Act. This court noted that the error was one that could have been raised on direct appeal and that the defendant’s failure to raise the issue on direct appeal constituted a waiver. Also, the court noted that the giving of a defective instruction did not effect the substantial denial of constitutional rights cognizable under the Post-Conviction Hearing Act. This court also held in People v. Johndrow (1968), 40 Ill. 2d 288, that the failure to give a tendered instruction did not constitute a denial of a constitutional right or present a question which would justify relief under the Post-Conviction Hearing Act.

Merely alleging that the trial error, or the error in the giving of an instruction, constituted a constitutional violation does not elevate these errors to constitutional status, qualifying them for review under the Post-Conviction Hearing Act. We will reserve for discussion below the question of whether the failure to object to the instruction at trial waived the defendant’s right to raise as error on review the giving of the defective instruction. We need not consider that issue in connection with Grizzle’s post-conviction petition. His failure to raise the question on direct appeal prevents him from raising it in the post-conviction petition. The affirmance on direct appeal is res judicata as to all issues that were raised or that could have been raised on appeal. (People v. Rose (1969), 43 Ill. 2d 273, 279; People v. Ashley (1966), 34 Ill. 2d 402, 408; ABA Standards, Post-Conviction Remedies sec. 6.1 and Commentary, at 88-89 (1968).) Also, the giving of this defective instruction did not constitute the denial of a constitutional right cognizable under the Post-Conviction Hearing Act.

The concept of waiver presents the primary question for resolution in Roberts’ case. A fundamental concept of our adversary system is that counsel must object at trial to errors. Thus, we must necessarily recognize that counsel may “waive” the right to raise certain errors in later proceedings by failure to object to those errors at trial. People v. Coles (1979), 74 Ill. 2d 393; People v. Precup (1978), 73 Ill. 2d 7, 16-17; People v. Pickett (1973), 54 Ill. 2d 280. See generally, Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 U. Pa. L. Rev. 473 (1978).

Our cases hold that failure to make an objection at trial to an error in jury instructions waives the issue for appeal. (People v. Underwood (1978), 72 Ill. 2d 124, 130, and cases cited therein (Underwood involved the failure to define “reasonably believes”); People v. Mallett (1970), 45 Ill. 2d 388 (instruction on evaluation of confession); People v. Lyons (1967), 36 Ill. 2d 336 (instruction on justifiable use of force).) In this context, we observe that the Seventh Circuit Court of Appeals has rigidly enforced the waiver rule, even under the broad Federal Rule of Criminal Procedure 52(b) standard. Rule 52(b) corresponds to our Rule 615. United States v. Jackson (7th Cir. 1978), 569 F.2d 1003 (waived possible error in self-defense instruction); United States v. Knippenberg (7th Cir. 1974), 502 F.2d 1056 (waived error on failure to define “wilfully”); United States v. Cantu (7th Cir. 1972), 501 F.2d 1019 (waived error regarding elements of the offense).

The reason for this waiver rule, as stated in many of our appellate court cases, is that timely objections to defective instructions permit the court to correct the defects before the instructions are given, and do not therefore permit a party failing to object to gain the advantage of obtaining a reversal based upon his own failure to act. See Finfrock v. Eaton Asphalt Co. (1976), 41 Ill. App. 3d 1020; Dean v. Keith’s & Ralph’s Tavern, Inc. (1975), 25 Ill. App. 3d 970; Boone v. Baker (1972), 9 Ill. App. 3d 509.

The waiver rule is not absolute. Our Rule 451(c) (58 Ill. 2d R. 451(c)), which requires that instructions in criminal cases be tendered, given and settled as provided in section 67 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 67), also provides:

“[B] ut substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.”

Thus the waiver rule does not apply to substantial defects in instructions if the interests of justice require.

In applying this exception, this court has not broadly interpreted its provisions. In People v. Joyner (1972), 50 Ill. 2d 302, an error regarding the failure to instruct on a lesser included offense was not waived because, as noted by the court:

“This was a close case factually and it was possible for the jury to find the defendants guilty of murder, not guilty by reason of self-defense, or guilty of manslaughter.” (50 Ill. 2d 302, 307.)

The court felt that by not instructing on manslaughter the option to find the defendants guilty of manslaughter was not open to the jury. The court also noted that the defendants’ failure to tender the appropriate instruction was not as important to the fundamental fairness of their trial as the requirement that the jury be properly instructed. In People v. Cesarz (1969), 44 Ill. 2d 180, the defendant was convicted of murder and was sentenced to 70 to 90 years in prison. No instruction was given advising the jury that the burden was on the State to establish the defendants guilty beyond a reasonable doubt. The court noted it could refuse to consider this question on the ground that the defendant waived the giving of the instruction by his failure to tender it, but in view of the seriousness of the offense and the severity of the sentence, the court elected to consider the claim. In People v. Jenkins (1977), 69 Ill. 2d 61, the defendant was found guilty of attempted murder. The People tendered a mandatory instruction which omitted an essential element of the case, the justifiable use of force, although that had been an issue. The defendant tendered a mandatory instruction which included the element of justifiable use of force. This court held that the giving of two contradictory instructions, each mandating the jury to find the defendant guilty or not guilty based on the required findings stated in each instruction, constituted error that was not waived and which could be. considered under our Rule 451(c). This court stated that where there are “such grave errors in instructions so as to affect that very important consideration, justice, Rule 451(c) provides for a relaxation of [the waiver doctrine].” (69 Ill. 2d 61, 66.) In People v. Underwood (1978), 72 Ill. 2d 124, 130, this court noted that the “object of this limited exception to the waiver rule is to ensure that a defendant is not denied his right to a fair and impartial jury trial.”

The United States Supreme Court has also recently expressed a reluctance to read exceptions to the waiver rule broadly, particularly in the context of jury instructions. In Henderson v. Kibbe (1977), 431 U.S. 145, 52 L. Ed. 2d 203, 97 S. Ct. 1730, the court held that it was not reversible error when the element of causation was omitted from jury instructions in a trial for second degree murder. Mr. Justice Stevens said: “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1736.

Section 4.6(c) of the ABA Standards, Trial By Jury (1968), provides in part:

“No party should be permitted to raise on appeal the failure to give an instruction unless he shall have tendered it, and no party should be permitted to raise on appeal the giving of an instruction unless he objected thereto ***. However, if the interests of justice so require, substantial defects or omissions should not be deemed waived by failure to object to or tender an instruction.”

The committee commentary to this section states that notwithstanding the existence of the waiver rule the Federal courts, and most State courts, have taken the position that in criminal cases the trial judge has a responsibility to ensure that certain essential instructions are given.

“Certain basic instructions, essential to a fair determination of the case by the jury (e.g., burden of proof, elements of offense charged), must be given, and the concept of waiver will not be employed to bar reversal if a defendant has been convicted in the absence of these instructions.” ABA Standards, Trial By Jury, Commentary, at 116 (1968).

The commentary concludes by stating that the last sentence in section 4.6(c) is based upon our Rule 451.

Thus, where there is a failure to object to an instruction, waiver is the rule, and the provision of our Rule 451(c) constitutes an exception which, under the prior decisions of this court, is a limited exception (People v. Underwood (1978), 72 Ill. 2d 124, 129-30), to be used to correct “grave errors ” (People v. Jenkins (1977), 69 Ill. 2d 61, 66), or to be applied where the case is close factually and fundamental fairness requires that the jury be properly instructed (People v. Joyner (1972), 50 Ill. 2d 302, 307).

In discussing exceptions to the waiver rule as it relates to the failure to raise an issue in the trial court, this court stated in People v. Burson (1957), 11 Ill. 2d 360, 370, that the rule “will not operate to deprive an accused of his constitutional rights of due process.” The court also stated that it may, as a matter of grace, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial. (11 Ill. 2d 360, 370-71.) In People v. Pickett (1973), 54 Ill. 2d 280, 283, this court noted that the plain error exception to the waiver rule will also be applied in criminal cases in which the evidence is closely balanced.

In Roberts’ case the instruction defining murder was erroneous when considered in the context of the crime of attempted murder. The instruction was bad in that it told the jury that a person may commit the crime of murder when he has not only the intent to kill, but also when he has certain mental states other than an intent to kill. However, the inclusion of these other mental states in the nonmandatory definitional instruction does not constitute “grave error” contemplated by the cases cited, which have applied the limited exception to the waiver rule provision of our Rule 451(c). In this case it is not necessary “as a matter of grace” to apply this limited exception to assure the defendant a substantial means of enjoying a fair trial, and the evidence in this case is not “closely balanced.” Also, the giving of this erroneous instruction does not constitute a denial of due process of law. These strict tests, previously applied by this court and which are recognized by the ABA Standards, demonstrate that the exception to the waiver rule is limited and is applicable only to serious errors which severely threaten the fundamental fairness of the defendant’s trial. The error in the giving of the instruction in this case does not fall within the purview of the limited exception as heretofore recognized by this court.

In a sense, every error in the giving of an instruction impinges upon the right of a party to a fair trial. For this reason, when the instruction is objected to and the error called to the court’s attention, the giving of an erroneous instruction over an objection will warrant the reversal of a conviction and the granting of a new trial. However, in the absence of such an objection the defects are waived unless they are “substantial” and the “interests of justice require” the court to consider them. Nothing in People v. Harris (1978), 72 Ill. 2d 16, mandates a different conclusion. Although in Harris this court discussed instructional error in the context of Rule 451(c), we granted leave to appeal in that case to resolve the attempted-murder problem resulting from our decisions in People v. Muir and People v. Trinkle, and not to deal with the question of waiver. Harris, in fact, objected at trial to the instruction but failed to raise the question in his post-trial motion (72 Ill. 2d 16, 20).

Roberts’ appeal raises one final point. Both Roberts and the People invite us to decide whether reckless conduct is a lesser included offense in attempted murder. We decline the invitation. We have carefully examined the record in Roberts’ trial and find that neither the People nor Roberts presented any evidence that would lead to a finding of reckless conduct. It is the well-established rule in this State that there must be evidence to support the request for an instruction. (People v. Cox (1930), 340 Ill. 111.) No such evidence exists here. In addition to this lack of evidence, we note that the trial judge asked Roberts’ counsel several times whether there were any cases on the included-offense point; when none were produced, the judge refused the instruction. No cases on point have been cited to us either. Under the circumstances of this case, we feel that no error occurred.

In conclusion, we hold that these defendants are barred by the procedural-default rule of waiver from raising the issue of instruction error. Neither defendant can meet the requirements of the Rule 451(c) exception. As we emphasized in People v. Precup (1978), 73 Ill. 2d 7, 16, in the context of Rule 615 plain error, our exceptions to the waiver rule do not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court. That observation in Precup applies with equal validity to claimed error in jury instructions. Finally, in addition to the waiver barrier, Grizzle has not demonstrated a trial error of such magnitude that constitutional standards require the granting of a new trial under the Post-Conviction Hearing Act.

The appellate court opinion states: “Other complaints of error cited by defendant Roberts involved circumstances that are not likely to arise in a subsequent trial for the same offense. We need not discuss them.” (56 Ill. App. 3d 667, 674.) The opinion does not state nor have we been informed what these other claims of error are. However, it appears from the quoted language that there may have been issues raised in the appellate court that were not determined.

Therefore, in the case of defendant Grizzle, the judgment of the appellate court is reversed and the judgment of the circuit court of Jersey County is affirmed. In the case of defendant Roberts, the judgment of the appellate court is reversed and the cause is remanded to that court for consideration of other issues that have been raised but not considered by that court in the cause from which this appeal was taken.

Appellate court reversed; circuit court of Jersey County affirmed; cause remanded in part, with directions.

MR. JUSTICE MORAN,

concurring in People v. Grizzle and dissenting in People v. Roberts:

The majority, sua sponte, relies on the procedural rule of waiver to reverse the appellate court and reinstate defendant Roberts’ conviction for attempted murder. This was done despite the well-established rule that an issue not raised in the court of review is deemed waived. Nowhere in its petition for leave to appeal, its brief, or its reply brief does the State contend that Roberts waived any error by his failure to object to the giving of the instructions in question. Neither party considers waiver to be an issue here, and with good reason, for the question of waiver, in the context of such instructions on attempted murder, was argued and disposed of by this court in People v. Harris (1978), 72 Ill. 2d 16.

Harris was the consolidation of two cases appealed by the State, the defendants being Harris and Shields. Each involved charges of attempted murder and jury instructions similar to those involved in the instant case. At trial, Harris objected to the giving of the questioned jury instructions but the objection was overruled. He failed to raise the same objection in his post-trial motion. Shields, on the other hand, failed to object to the giving of such instructions at both the trial and his post-trial hearing. The briefs in both cases disclosed that in Harris’ case, as here, the State did not raise the waiver issue, but did so in Shields’ case. In both, this court determined that the instructional errors were so “substantial” that the waiver rule should not bar consideration on the merits. People v. Harris (1978), 72 Ill. 2d 16, 28.

The majority attempts to distinguish Harris on the ground that “we granted leave to appeal in that case [Harris] to resolve the attempted-murder problem resulting from our decisions in People v. Muir and People v. Trinkle, and not to deal with the question of wavier.” (75 Ill. 2d at 15.) This statement is unfounded, since reasons for allowing a petition for leave to appeal are unrecorded. The opinion in Harris evidences that we applied the waiver rule because the instructions on the elements of the offense of attempted murder were so substantially defective that, in the interests of justice, defendant was allowed to raise the issue on appeal. To now deny defendant Roberts the same right — to have his case decided on the merits — especially when the State has not urged us to do so, is not only patently unfair to the defendant but casts doubt on the sincerity of our recent efforts to correct the errors which heretofore prevailed in this area of criminal law.

At issue in both People v. Trinkle (1977), 68 Ill. 2d 198, and People v. Harris (1978), 72 Ill. 2d 16, were the proper instructions to be given the jury when the offense is attempted murder. In Trinkle, we held that a conviction cannot stand if the jury was instructed that it could find a defendant guilty of attempted murder “sans specific intent to kill.” (People v. Trinkle (1977), 68 Ill. 2d 198, 201.) In Harris, we upset the convictions of both Harris and Shields, and affirmatively resolved, “An instruction must make it clear that to convict for attempted murder nothing less than a criminal intent to kill must be shown.” (People v. Harris (1978), 72 Ill. 2d 16, 27.) The instructional defect in the cases of Trinkle, Harris and Shields was precisely the same as the defect in the present case. The prejudicial impact of such improper instructions was acknowledged by the holding in Trinkle and Harris.

Other than absolute-Hability offenses, every criminal offense requires one of four mental states. (Ill. Rev. Stat. 1973, ch. 38, pars. 4—3 through 4—7.) Under sections 9—1 (a)(1) and 9—1 (a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 9—1 (a)(1) and 9—1 (a)(2)), the offense of murder requires either of two mental states — intent or knowledge. On the other hand, only one mental state will suffice for the offense of attempt. Ill. Rev. Stat. 1973, ch. 38, par. 8—4 (a). Also see Ill. Rev. Stat. 1973, ch. 38, par. 4—3 (b), and W. LaFave & A. Scott, Criminal Law sec. 59, at 428-29 (1972).

As noted by the majority, the jury in the case at bar was instructed that, to convict defendant of attempted murder, defendant must have acted with intent to commit the crime of murder. The jury was then given the foHowing instruction defining murder:

“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,
(1) he intends to kill or do great bodily harm to that individual; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that individual.”

Under this instruction, the jury could convict the defendant of attempted murder if it found that defendant intended to do great bodily harm, knew that his acts created a strong probability of death, or knew that his acts created a strong probability of great bodily harm. (As hereafter noted, defendant was not charged in the verbiage of (1) of the instruction.) Under Trinkle and Harris, this instruction was erroneous in that it permitted the jury to convict the defendant upon a finding that he had a mental state other than a specific intent to kill.

An indictment and jury instructions must make it clear that the specific intent to kill is a prerequisite to a conviction for attempted murder. Mr. Justice Ryan’s dissent in Harris commences by stating, “Considerable amount of uncertainty seems to prevail in courts and among members of the bar as to what language is permissible or impermissible in charging attempted murder and in instructing the jury on this offense.” (72 Ill. 2d at 29.) To rectify the uncertainty, I believe the body of the indictment and the necessary instructions regarding attempted murder should contain the following:

INDICTMENT

On or about the____day of______at and within________ County, Illinois,________ committed the offense of ATTEMPT MURDER, in violation of section 8 — 4(a) of the Criminal Code of 1961 (Illinois Revised Statutes 19__, chapter 38, section 8— 4(a)) in that [he] [she] did, with the intent to commit the offense of murder of____[victim]_________ take a substantial step toward the commission of said offense, in that [he] [she] did, without lawful justification, ______________________________ with the intent to kill_____[victim]_______ in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (Illinois Revised Statutes 19__, chapter 38, section 9— 1(a)(1)).

JURY INSTRUCTIONS FOR ATTEMPTED MURDER

A person who kills an individual without lawful justification commits the crime of murder if, in performing the acts which cause the death, he intends to kill that individual.

A person commits the crime of attempted murder if, with intent to commit the crime of murder, he does any act which constitutes a substantial step toward the commission of the crime of murder.

The crime attempted need not have been committed.

To sustain the charge of attempted murder, the State must prove the following propositions:

First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and

Second: That the defendant did so with the intent to kill_______[victim.]_________

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

According to the majority, we need not “as a matter of grace” consider the instructional defect, sub judice, to assure the defendant a fair trial. (75 Ill. 2d at 14.) The majority bases this assertion on its conclusion that “the evidence in this case is not ‘closely balanced.’ ” (75 Ill. 2d at 14-15.) Iam convinced that, in reaching this conclusion, the majority considered whether the defendant committed the acts aEeged, but failed to consider the intent which was the subject of the instructional error. The inquiry should have been directed to the defendant’s mental state: Did defendant fire a shot into the adjacent truck with specific intent to kill the driver? The facts pertinent to this question certainly leave considerable doubt as to whether defendant Roberts had the specific intent to kill. The action taken by the grand jury supports this statement. The indictment presented to the grand jury charged Roberts with two counts of attempted murder. Count I stated:

“*** the defendant, with the intent to commit the offense of Murder in violation of Section 9 — 1(a)(1) of the Criminal Code of 1961, did perform a substantial step toward the commission of that offense in that he did, with the intent to kill or do great bodily harm to Bemie L. Larson, aimed [«c] a gun and shoot said gun at Bemie L. Larson ***.”

Count II stated,

“*** the defendant, with the intent to commit the offense of Murder in violation of Section 9 — 1(a)(2) of the Criminal Code of 1961, did perform a substantial step toward the commission of that offense in that he aimed and fired a gun at the passenger compartment of a truck occupied and driven by Bernie L. Larson, knowing that such acts created a strong probability of death or great bodily harm to Bernie L. Larson ***.”

Count I charged defendant with the specific intent to kill or do great bodily harm. On this count, the grand jury returned a no bill. Count II charged the defendant with knowledge that his acts created a strong probability of death or great bodily harm, and on this count a true bill was returned under which the defendant was subsequently convicted. Therefore, it can only be concluded that the grand jury specifically found a lack of probable cause that Roberts had acted with intent to kill.

There is no doubt that the error in this case, identical to the error in Harris, was “substantial” — the determination also reached in Harris. This, coupled with the grand jury’s finding on count I, leads me to but one conclusion: the interest of justice requires that defendant Roberts’ conviction be reversed and the cause remanded for a new trial. I would, therefore, affirm that portion of the appellate court judgment which reversed the conviction of Roberts.


source: Caselaw Access Project

author: MR. JUSTICE RYAN MR. JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 50788.
    ELIZABETH B. STUART et al., Appellants, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO et al., Appellees.

      Opinion filed Jan. 26, 1979.

    Rehearing denied March 30, 1979.

      UNDERWOOD and MORAN, JJ., dissenting.
    William T. Hart, Allan Horwich, and Joseph P. Collins, of Schiff, Hardin & Waite, of Chicago, for appellant Elizabeth B. Stuart.
    Samuel W. Witwer, J. Alfred Moran, and Samuel W. Witwer, Jr., of Witwer, Moran, Burlage & Atkinson, of Chicago, for appellant Illinois Institute of Technology.
    Roger W. Barrett and Franklin P. Auwarter, of Mayer, Brown & Platt, of Chicago, for appellee Continental Illinois National Bank & Trust Co. of Chicago.
    Willard L. King, of Chicago (King, Robin, Gale & Pillinger, of counsel), for appellee Chicago Historical Society.
    Thomas J. Russell, of Mitchell, Russell & Kelly, of Chicago, for appellee DePaul University.
    Charles E. Herzog, of Bell, Boyd, Lloyd, Haddad & Bums, of Chicago, for appellee University of Chicago.
    Michael C. Weston, of the Office of the University Attorney, Northwestern University, of Evanston, for appellee Northwestern University.
    William H. Oswald, of the Office of General Counsel, Loyola University of Chicago, of Chicago, for appellee Loyola University of Chicago.
    Christopher W. Wilson, of Hopkins, Sutter, Mulroy, Davis & Cromartie, of Chicago, for appellee Blackburn College.
    Vernon T. Squires, of Wilson & McEvaine, of Chicago, for appellees Field Museum of Natural History, The Orchestral Association, Children’s Memorial Hospital and Chicago Boys Clubs.
    Raymond Goldfarb, of WiUiams, Manos, Rutstein, of Goldfarb 8c Sharp, Ltd., of Chicago, for appellee Mercy Hospital and Medical Center.
    Otis H. HaUeen, of Sonnenschein, Carlin, Nath 8c Rosenthal, of Chicago, for appellee Michael Reese Hospital and Medical Center.
    James J. McClure, Jr., of Gardner, Carton 8c Douglas, of Chicago, for appellee Rush-Presbyterian-St. Luke’s Hospital.
    Lee A. Freeman, Sr., of Freeman, Freeman & Salzman, of Chicago, for appellee Lyric Opera of Chicago.
    Louis M. Rundió, Jr., of McDermott, Will 8c Emery, of Chicago, for appellee YMCA of Metropolitan Chicago.
    Arthur Cichorski, of Davis, Dietsch 8c Ryan, of Chicago, for appellee The Salvation Army — Greater Chicago Unified Command.
    Stephen L. Schar, of Aaron, Aaron, Schimberg 8c Hess, of Chicago, for appellee The American Red Cross.
    John Angle, of Kirkland 8c Ellis, of Chicago, for appellees Boy Scouts of America and Rehabilitation Institute.
    Hugh King, of Jenner & Block, of Chicago, for appellee Girl Scouts of Chicago.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal is a sequel to Stuart v. Continental Illinois National Bank & Trust Co. (1977), 68 Ill. 2d 502. Upon remand by that opinion, Elizabeth Stuart and the Illinois Institute of Technology (hereinafter HT) sought to recover “increases, gains, income or profits” accumulating after June 30, 1971, on the $3.5 million granted IIT by the earlier opinion of this court. The circuit court of Cook County dismissed the petition and ruled that only the $3.5 million should be distributed to IIT.

The primary issue posed now by Miss Stuart and IIT is whether our earlier opinion gave IIT a right to interest, dating from June 30, 1971, on its grant of $3.5 million. We hold that the $3.5 million grant is the total amount to which IIT is entitled.

The protracted litigation involving the will of Harold Stuart has been recounted in earlier proceedings (see 68 Ill. 2d 502; Northern Trust Co. v. Continental Illinois National Bank & Trust Co. (1976), 43 Ill. App. 3d 169), and this particular appeal does not require a complete restatement of those facts. Harold Stuart died on June 30, 1966, leaving a substantial estate. His will provided for the creation of a large charitable trust, with his two sisters and the Continental Bank as trustees. The trustees had the power to designate the charities to whom the assets of the estate would be distributed. Under the provisions of that trust, the bank could veto any distribution ordered by the two sisters. The trustees were unable to agree on a distribution plan, so the circuit court was called on to establish a plan of distribution. The court adopted almost the entire plan submitted by the bank. The two sisters had requested that three-fourths of the trust go to IIT, while the plan approved by the court called for much wider distribution.

In our earlier opinion we examined three major issues relevant to this appeal. First, we found that the bank had wrongfully distributed $250,000 to an unqualified charity, and we ordered the money returned, with interest, to the trust. Second, we found that the bank and the two sisters had both designated an additional distribution of $3.5 million to IIT. We ordered disbursement of that amount to IIT. Third, we found that any excess funds should be distributed according to the plan as set forth by the circuit court. Our opinion had, accordingly, dealt with all funds available for distribution. We remanded that case for entry of appropriate orders.

On the remand, Miss Stuart and IIT filed a petition for accounting which asked the bank to supply information on all increases, gains, income or profits, accruing after June 30, 1971, on the $3.5 million, and asked that an order be entered directing the bank to distribute that money to IIT. The circuit court dismissed that petition and a direct appeal under Rule 302(b) (58 Ill. 2d R. 302(b)) was granted.

In the earlier opinion of this court, it was clearly stated:

“We hold, therefore, that upon remand an order be entered directing that an additional $3.5 million of the estate be distributed to IIT.” (Stuart v. Continental Illinois National Bank & Trust Co. (1977), 68 Ill. 2d 502, 536.)

It is impossible to negate every possible issue in an opinion and therefore the rule is that “[w]here *** the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. Precise and unambiguous directions in a mandate must be obeyed.” (Thomas v. Durchslag (1951), 410 Ill. 363, 365.) While we did not specifically exclude an increase of the IIT grant in the earlier opinion, neither did we include it, and we specifically directed that $3.5 million be distributed to IIT. In contrast, our earlier opinion specificaHy provided for interest on the $250,000 the Continental Bank would be required to return to the trust (68 Ill. 2d 502, 526). The circuit court foUowed our instructions and was correct in dismissing a claim for additional funds.

Our earlier opinion effectively distributed aH the proceeds of the Stuart trust. On that appeal, IIT contended that the trial court, in adopting its plan for distribution, had erred in not including IIT in the pro rata distribution of $6.5 million of the funds in excess of the amount required to satisfy all specific grants. Monies in excess of the specific grants were ordered to be distributed to designated group 1 and group 2 charities, as established in the distribution plan, on a pro rata basis. We specificaHy limited IIT’s grant to $3.5 million by holding that they were to receive none of the excess funds. As we stated, “IIT is the only other charity which is precluded from taking a pro rata share of the excess funds, and the court [the initial trial court] could well have concluded that IIT’s share of the estate was already of sufficient size.” (68 Ill. 2d 502, 538.) The $6.5 million included interest or earnings that could well have been attributed to the $3.5 million which this court held should be distributed to IIT. When the matter was presented to the circuit court for a plan of distribution, the $3.5 million was not a segregated fund but was a part of the total assets of the estate, for which the court was asked to form a plan of distribution. Plaintiffs had, at one time, stated in writing that IIT should receive $3.5 million in addition to that which had previously been distributed to it. However, when that amount was agreed to by the bank, plaintiffs insisted that IIT should receive three-fourths of the total estate. Although in our previous opinion we characterize the bank’s action of withdrawing its proposal of the additional grant as “arbitrary and unreasonable” (68 Ill. 2d 502, 536), it should be noted that, at the time of the withdrawal, plaintiffs did not agree to a distribution to IIT of only an additional $3.5 miUion. The court was then called upon by both parties to formulate a plan of distribution of the entire fund. This the court did, excluding IIT from any share in the accumulated excess. Our opinion stated that we could not say that the circuit court’s holding in adopting this plan was inequitable or contrary to the manifest weight of the evidence. The present contention of the plaintiffs is, in effect, asking this court to reconsider at least a part of the distribution plan which we have previously approved.

IIT suggests that our finding that “the circuit court erred in its denial of the relief requested by plaintiff IIT in count III” (68 Ill. 2d 502, 533) gave IIT a vested right to the $3.5 million retroactive to June 30, 1971. IIT argues that because it had a vested right to the money, it had a right to the accumulated interest on that money. In particular, it relies on article V(e) of the Stuart wiH, which provides:

“[T]he Executors shall, prior to the expiration of such period of five (5) years after my death, select in writing the qualified charitable organizations to take hereunder and the proportion of my estate each such organization is to receive, and the interest of each such charitable organization shall vest at the expiration of such five-year period.”

Harold Stuart died on June 30, 1966, thus making June 30, 1971, the date of “vesting.”

The term “vest” does not have a single, fixed, clear and precise meaning. Whether found in a statute or in a document, the word must be construed with reference to, and take its meaning from, the context of the provision where it is found. It may be used “when there is an immediate right to present enjoyment or a present fixed right of future enjoyment” of property. (2 W. James, Illinois Probate Law & Practice sec. 43.74, at 50 (1951). See also Pearson v. Hanson (1907), 230 Ill. 610, 617; 92 C.J.S. 1002 (1955).) Once the designation had been made by the Stuart sisters and the bank, the interest became fixed or “vested” and could not be altered by the bank’s subsequent withdrawal of the proposal, or by the plaintiffs’ rejection of the $3.5 million grant and their demand for a grant to IIT of three-fourths of the estate. However, in the context of the will, the enjoyment of the fixed or vested interest was to be delayed until distribution. Because of the litigation wherein both parties requested the court to approve plans for distribution, the right to the enjoyment of the $3.5 million was delayed until the lower court ordered distribution upon remand. “Vest,” as used in the Stuart wiH, meant only that once the designation had been made, it could not be withdrawn. IIT was given a present fixed right to future enjoyment upon distribution, not a present possessory interest. The vested interest of IIT did not carry with it the right to interest on the amount of the grant from June 30, 1971.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

I believe that it was implicit in our earlier opinion in this case that IIT was entitled to interest on its grant of $3.5 million. In our October 1977 opinion it was determined “that the circuit court erred in its denial of the relief requested by plaintiff IIT in count III of the second amended complaint.” (68 Ill. 2d 502, 533.) While that opinion did not refer specifically to the question of interest on the $3.5 million, the relief requested by plaintiff IIT in count III of its second amended complaint included an amount for “increases, gains, earnings or profits” on the $3.5 million grant. Since the majority opinion concedes that “we did not specifically exclude an increase of the IIT grant in the earlier opinion,” it would seem more logical to resolve the ambiguity by referring to the pleadings to determine what relief was requested, since we concluded that the circuit court had erred in its denial of the relief requested by IIT.

More fundamentally, however, it seems contrary to logic and reason to declare, on the one hand, that IIT had a vested right to the $3.5 million grant as of June 30, 1971, but on the other hand to deny IIT any right to the interest which accrued on this grant during the subsequent course of this protracted litigation. The result reached by the majority seems especially unsound when one considers article V(e) of the Stuart will, which provides:

“[T] he Executors shall, prior to the expiration of such period of five (5) years after my death, select in writing the qualified charitable organizations to take hereunder and the proportion of my estate each such organization is to receive, and the interest of each such charitable organization shall vest at the expiration of such five-year period.” (Emphasis added.)

Since IIT was selected as a charitable organization to take under the will within the 5-year period immediately following the testator’s death on June 30, 1966, its interest “vested” on June 30, 1971, pursuant to the express terms of the will.

Despite this fact, the majority opinion concludes that this vested right only entitles IIT to the principal amount of $3.5 million upon distribution, following the termination of this lengthy litigation. This view is based upon what I believe to be an overly restrictive interpretation of the word “vest.” The majority opinion concludes that IIT’s vested interest gave it a “present fixed right to future enjoyment upon distribution” and only guaranteed IIT that once it had been designated as a charitable organization to receive under the will, such designation could not be withdrawn.

I find it difficult to accept such an inequitable construction of the Stuart will. I concede that the word “vest” may have a different meaning depending on its legal context, but it seems to me that there is no basis in the language of the will for the conclusion reached by the majority. On the contrary, I think that a careful analysis of the Stuart will reveals that the testator used the word “vest” in the usual sense of an immediate right to present enjoyment.

Article V(d) of the Stuart will, which the majority opinion fails to discuss, provides as follows:

“The executors acting as trustees may, in their sole judgment and discretion, accumulate the net income of the trust estate and add the same to principal (provided the accumulations shall not take place for more than five years), or may from time to time distribute the net income, or such part thereof, as the trustees in their sole judgment and discretion may deem proper, to such qualified charitable organizations as the trustees may select. ” (Emphasis added.)

This clause, to me, demonstrates the testator’s intent that accumulations of net income may be added to the general residue of the trust estate only for the 5-year period immediately following the testator’s death. The only reasonable interpretation of this clause, when read in conjunction with article V(e), is that the testator intended the charitable organizations designated within the prescribed 5-year period to come into present enjoyment and possession of their grants on June 30, 1971. After that date, any accumulation of interest would belong, as of right, to the appropriate designated charity and could not be added to the general residue of the trust estate.

Clearly, if the executors had been successful in designating the charities to take under the will and the proportion each was to receive pursuant to article V(e), there would be no doubt that under article V(d) any further accumulations of income prior to distribution would accrue to the benefit of the appropriate charity. The fact that the executors failed to reach agreement prior to June 30, 1971, on the charitable organizations, other than IIT, to take under the will should not operate to deprive IIT of interest that it would otherwise have been indisputably entitled to. The prohibition in article V(d) against accumulations of net income subsequent to the “vesting” date of June 30, 1971, reinforces my belief that the testator used the word “vest” to connote present enjoyment and possession, including the right to receive all “increases, gains, earnings or profits” accruing after the vesting date. I would allow IIT interest on the $3.5 million from the date of vesting, June 30, 1971.

MR. JUSTICE MORAN joins in this dissent.


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

text:
    (No. 49625.

      In re APPLICATION OF ROBERT G. SKIDMORE, County Treasurer, Appellant.—(Illinois State Toll Highway Authority et al., Appellees.)

      Opinion filed Jan. 26, 1979.

    Rehearing denied March 30, 1979.

      UNDERWOOD and RYAN, JJ., dissenting.
    Dennis P. Ryan, State’s Attorney, of Waukegan (Gary Neddenriep, Assistant State’s Attorney, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Tanya K. Dietrich and John R. Lavery, Special Assistant Attorneys General, of Oak Brook, of counsel), for appellees.
    Allyn J. Franke, of Franke & Miller, of Chicago, for amicus curiae local taxing bodies, in the counties of Lake, Cook and DeKalb.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

The taxing authorities of Lake County assessed real estate taxes for the year 1970 in the amount of $29,826.40 on the leasehold interest of Standard Oil Division of the American Oil Company in property owned by the Illinois State Toll Highway Authority. The property involved is the Lake Forest Toll way oasis owned by the Authority and leased to the Standard Oil Division of the American Oil Company. The Authority and Standard Oil paid the taxes under protest and filed objections to the application for judgment of the county treasurer and ex-officio collector of Lake County. The circuit court of Lake County, relying on Illinois State Toll Highway Com. v. Korzen (1965), 32 Ill. 2d 338, held that the leasehold interest was exempt from taxation and enjoined the county officials and their successors in office “from assessing, levying, coHecting or attempting to assess, levy or collect” general real estate taxes on the leasehold interest.

As originally enacted in 1953 and as reenacted in 1967, the toH highways act (see Ill. Rev. Stat. 1953, ch. 121, par. 314a43; Ill. Rev. Stat. 1967, ch. 121, par. 100—22) provided: “All property belonging to the Commission [Authority], and the said toll highways, shall be exempt from taxation.” Effective October 1, 1973, section 22 was amended to provide: “All property belonging to the Authority, and the toll highways, shall be exempt from taxation. However, such part of that property as has heretofore been or shall hereafter be leased by the Authority to a private individual, association or corporation for a use which is not exempted from taxation under Section 19 of the Revenue Act of 1939, is subject to taxation as provided in Section 26 of the Revenue Act of 1939, regardless of any provision in such a lease to the contrary.” (Ill. Rev. Stat. 1973, ch. 121, par. 100—22.) The collector filed a motion in the circuit court to vacate that part of the decree which found the leasehold interest to be exempt from taxation and enjoined the county officials from attempting to tax it. The circuit court ordered that that portion of the decree which enjoined the assessment, levy or coUection of taxes on the leasehold interest be vacated and the injunction dissolved. The Authority appealed and the appellate court, finding that the amendment to section 22 of the toll highways act “was a law impairing the obligation of the contract both as to the Authority and Standard Oil,” held that there was “an impairment of a valid, existing contract contrary to the provisions *** of the Illinois Constitution.” (47 Ill. App. 3d 954, 960.) The collector appealed. Supreme Court Rule 317 (58 Ill. 2d R. 317).

The collector contends that the termination of the tax exemption for leasehold interests in tollway oases did not impair any contractual obligation between the Authority or its lessee, or between the Authority and the holders of its bonds issued prior to the enactment of the amendment. It is the Authority’s position that its property is State property and therefore exempt from all general property taxation; that leaseholds in tollway property used as oases are a part of the contemplated public service and function of the Authority and such use is therefore exempt from taxation; and that this court has previously recognized that the toll highways act is a valid and binding contract entered into by the State.

In Small v. Pangle (1975), 60 Ill. 2d 510, 514, the court, in discussing the interpretation of section 6 of article IX of the Constitution of 1970, said:

“The above [article IX, section 6] is clearly nothing more than a rephrasing of a similar provision contained in section 3 of article IX of the Illinois Constitution of 1870. Those cases interpreting the permissive legislative exemptions under the Constitution of 1870 are equally relevant to the limits of exemption now constitutionally permitted.
The basic premise, that statutes providing exemption from taxation shall be strictly construed because article IX of the Constitution subjects all property to taxation (see Wesley Willows v. Munson (1969), 43 Ill. 2d 203, 207), remains valid. Also see People ex rel. Nordlund v. Winnebago Home for the Aged (1968), 40 Ill. 2d 91.”

Since all presumptions are to the contrary, the intention that the State be bound by an exemption must be clearly stated. (People ex rel. Murray v. City of St. Louis (1920), 291 Ill. 600, 606.) As a general rule a taxpayer has no vested right in the continued existence of a taxing statute. People ex rel. Harding v. Chicago & Northwestern Ry. Co. (1930), 340 Ill. 102; People ex rel. Campe v. Board of Review (1919), 290 Ill. 467.

Whether the statute creates contractual rights is to a great extent dependent upon the language used. (Dodge v. Board of Education (1937), 302 U.S. 74, 87 L. Ed. 57, 58 S. Ct. 98.) The law enacted in 1855 granting the exemption upheld in People ex rel. County Collector v. Northwestern University (1972), 51 Ill. 2d 131, provided: “ ‘That all property, of whatever kind or description, belonging to or owned by said corporation [Northwestern University], shaU be forever free from taxation for any and all purposes.’ ” (51 Ill. 2d 131, 132.) In United States Trust Co. v. New Jersey (1977), 431 U.S. 1, 52 L. Ed. 2d 92, 97 S. Ct. 1505, in which the Supreme Court held that New Jersey’s repeal of a statute previously enacted by both New York and New Jersey violated the contract clause of the Constitution of the United States, the statute in relevant part provided:

“ ‘The 2 States covenant and agree with each other and with the holders of any affected bonds, as hereinafter defined, that so long as any of such bonds remain outstanding and unpaid and the holders thereof shall not have given their consent as provided in their contract with the port authority, (a) *** and (b) neither the States nor the port authority nor any subsidiary corporation incorporated for any of the purposes of this act will apply any of the rentals, tolls, fares, fees, charges, revenues or reserves, which have been or shall be pledged in whole or in part as security for such bonds, for any railroad purposes whatsoever other than permitted purposes hereinafter set forth.’ 1962 N.J. Laws, c. 8, sec. 6; 1962 N.Y. Laws, c. 209, sec. 6.” 431 U.S. 1, 9-10, 52 L. Ed. 2d 92, 101-02, 97 S. Ct. 1505, 1511.

The section of the toll highways act in which the exemption was granted contained no language which would serve to create a contract that the grant of exemption would remain in force. In People ex rel. Campe v. Board of Review (1919), 290 Ill. 467, the court held that a taxpayer had no vested rights under a statute providing that a certain portion of the actual value of property was to be' the basis for assessment for taxation and that the General Assembly was empowered to change the basis at any time. In Dodge v. Board of Education (1936), 364 Ill. 547, in rejecting the contention that the amendment to the Act relating to the compulsory retirement of school teachers was invalid as taking away vested rights to future installments of pensions for teachers who had retired or applied for retirement under the law as it existed prior to the amendment, the court said, “A right, to be within the protection of the constitution, must be a vested right. It must be something more than a mere expectancy based upon an anticipated continuance of an existing law. If before rights become vested in particular individuals the convenience of the State induces amendment or repeal, such individuals have no cause to complain.” (Dodge v. Board of Education (1936), 364 Ill. 547, 552.) We perceive no reason to hold that absent a clearly stated intent to the contrary the grant of the exemption from taxation here created any greater rights than did the statutes upon which the claims of contractual rights in the foregoing cases were based.

We consider next the Authority’s contention that the property is exempt because it is State property. We agree with the appellate court that this contention is without merit (47 Ill. App. 3d 954, 956) for the reason that the property sought to be taxed is not State property, but a leasehold interest of Standard Oil. (Nabisco, Inc. v. Korzen (1977), 68 Ill. 2d 451.) Concerning the contention that because the oases are a part of the Authority’s contemplated public service and function the leasehold interest is exempt, we hold, as did the appellate court, that in enacting the amendment the General Assembly intended “to negate the effect of the decision in Illinois State Toll Highway Commission v. Korzen.” 47 Ill. App. 3d 954, 957.

We have considered the Authority’s argument that in People v. Illinois Toll Highway Com. (1954), 3 Ill. 2d 218, and Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, “This court has recognized the Toll way Act to be a valid and binding contract entered into by the State.” We find nothing in those opinions which would support the Authority’s claim of a contractual right to a continuation of the exemption.

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.

MR. JUSTICE UNDERWOOD,

dissenting:

While agreeing with Mr. Justice Ryan, it seems to me necessary to emphasize to a greater degree than does his dissenting opinion the particular reasons for my disagreement with the court. I believe that where there are outstanding bonds issued by the Illinois State Toll Highway Authority and its predecessor under enabling acts (Ill. Rev. Stat. 1953, ch. 121, par. 314a26 et seq.-; Ill. Rev. Stat. 1967, ch. 121, par. 100 — 1 et seq.) that make the bonds payable solely from revenues of the Authority (Ill. Rev. Stat. 1953, ch. 121, par. 314a39, currently Ill. Rev. Stat. 1977, ch. 121, par. 100—17), which at the time of issue were not encumbered by tax (Ill. Rev. Stat. 1953, ch. 121, par. 314a43), action by the State which now reduces those revenues by subjecting them to tax impairs the obligation of the Authority’s contract with the bondholders in violation of the United States and Illinois constitutions (U.S. Const., art. I, sec. 10; Ill. Const. 1970, art. 1, sec. 16). I base this belief partly on two recent United States Supreme Court decisions which, contrary to earlier speculations about the demise of the Federal contracts clause (see J. Nowak, R. Rotunda & J. Young, Constitutional Law 427 (1978)), demonstrate that the clause still restrains a State’s ability to modify both private and public contracts.

In United States Trust Co. v. New Jersey (1977), 431 U.S. 1, 52 L. Ed. 2d 92, 97 S. Ct. 1505, the Supreme Court invalidated a State statute as impairing the obligation of one of the State’s own contracts. New York and New Jersey had enacted a bi-State compact establishing a port authority with power to issue bonds secured by the revenues from its operations. In 1962 the two States enacted statutory covenants with holders of these bonds that revenues pledged to outstanding issues would not be used for other than certain specified purposes. In 1974, during the energy crisis, both States repealed the covenant in order to finance mass-transit improvements deemed vital to encouraging reduction of automobile use. In considering whether this repeal violated the contracts clause, the court employed a two-step analysis, first inquiring whether there had been a technical impairment of a contract and then asking whether the impairment was one permitted by the Constitution. The court found that the 1962 covenant constituted a contract between the State and the bondholders and that its repeal impaired the obligation of this contract, quoting with approval the trial court’s conclusion:

“To the extent that the repeal of the covenant authorizes the Authority to assume greater deficits for [mass transport] purposes, it permits a diminution of the pledged revenues and reserves and may be said to constitute an impairment of the states’ contract with the bondholders.” 431 U.S. 1, 20-21, 52 L. Ed. 2d 92, 108, 97 S. Ct. 1505, 1517.

The court then considered the constitutionality of the repealer by weighing this impairment against the State’s reserved power to enact general regulatory measures. Although a State cannot “contract away” its police power or power of eminent domain, it can bind itself to a future exercise of its taxing and spending power. The court held:

“Legislation adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption.” (431 U.S. 1, 22, 52 L. Ed. 2d 92, 109-10, 97 S. Ct. 1505, 1518, citing Home Building & Loan Association v. Blaisdell (1934), 290 U.S. 398, 445-47, 78 L. Ed. 413, 432-34, 54 S. Ct. 231, 242-43.)

Further, the court reasoned that when impairment of private contracts was at stake, courts would “defer to legislative judgment as to the necessity and reasonableness of a particular measure.” (431 U.S. 1, 23, 52 L. Ed. 2d 92, 110, 97 S. Ct. 1505, 1518.) When the State impaired the obligation of its own contracts, however, no such deference was due “because the State’s self-interest [was] at stake.” (431 U.S. 1, 26, 52 L. Ed. 2d 92, 112, 97 S. Ct. 1505, 1520.) The court concluded that although energy conservation and environmental improvement, the legislative purposes claimed by the State, were “admittedly important” (431 U.S. 1, 29, 52 L. Ed. 2d 92, 114, 97 S. Ct. 1505, 1521), the repealer was neither necessary to encourage reduction of automobile use nor reasonable in the circumstances and therefore could not survive the constitutional challenge.

In Allied Structural Steel Co. v. Spannaus (1978), 438 U.S. 234, 57 L. Ed. 2d 727, 98 S. Ct. 2716, the Supreme Court invalidated a State statute as impairing the obligation of a private contract. Allied, an Illinois corporation with a Minnesota office, had adopted a pension plan in 1963, to which it was the sole contributor and to which it made contributions each year based on predictions of eventual payout needs. In 1974 Minnesota enacted a law providing that an employer who had a voluntary pension plan and who either terminated the plan or closed a Minnesota office was subject to a charge unless pension funds were sufficient to provide considerably more extensive coverage than Allied’s plan did. Allied closed its Minnesota office and was notified by the State that it owed a considerable sum under the provisions of the act.

In considering the constitutionality of the Minnesota law, the court followed the same two-step analysis it had used in United States Trust Co. It found that there had been an impairment of Allied’s contract with its employees because the act imposed obligations on the company far beyond those it had undertaken and reasonably relied on. In balancing this impairment against the State’s reserved power to legislate for the public welfare, the court found no showing that “this severe disruption of contractual expectations was necessary to meet an important general social problem” (438 U.S. 234, 247, 57 L. Ed. 2d 727, 738, 98 S. Ct. 2716, 2724), since the act applied only to private employers who had pension plans and who closed a Minnesota office. The court concluded that the impairment was constitutionally prohibited.

The initial inquiry in the case before us is whether the partial repeal of the tax exemption challenged here (Ill. Rev. Stat. 1973, ch. 121, par. 100—22) constitutes a technical impairment of the obligation of the Authority’s contract with the bondholders. The amendment by its terms applies only to property leased by the Authority to private parties, but the pass-through provisions in the affected leases ensure that the effect is the same as if the Authority had been taxed directly. The precise question, therefore, is this: Where the State has authorized the Authority to issue bonds secured solely by its revenues (Ill. Rev. Stat. 1953, ch. 121, par. 314a39, currently III. Rev. Stat. 1977, ch. 121, par. 100—17), and provided that these revenues shall not be diverted (Ill. Rev. Stat. 1953, ch. 121, par. 314a45, currently Ill. Rev. Stat. 1977, ch. 121, par. 100—24), does the State’s subsequent reduction of these revenues by statute impair the obligation of the contract between the Authority and the bondholders? I think it must be admitted that it does. As the Supreme Court noted in United States Trust Co.: “Nor was the covenant merely modified or replaced by an arguably comparable security provision. Its outright repeal totally eliminated an important security provision and thus impaired the obligation of the States’ contract.” (431 U.S. 1, 19, 52 L. Ed. 2d 92, 108, 97 S. Ct. 1505, 1516.) If the legislature can reduce the Authority’s revenues in this manner, why can it not modify or repeal the Authority’s statutory power to fix and collect tolls (Ill. Rev. Stat. 1977, ch. 121, pars. 100—10, 100—11), thus effectively nullifying the bondholders’ security and diminishing the value of the bonds. There is, of course, no question that this would impair the obligation of the Authority’s contract with the bondholders. Although the reduction in the Authority’s revenues challenged here is smaller, any such reduction which diverts the revenues from this statutorily pledged purpose constitutes at least a technical impairment of obligations under the contract, a frustration of legitimate expectations with which the bondholders entered into the contract.

This impairment, however, will not violate the Constitution if it comes within the State’s reserved power to enact general regulations for the public welfare. The Supreme Court hás scrutinized the reasonableness and necessity of such legislation more closely when the obligations impaired were those of the State’s own contracts than when only private contracts were affected, because in the former case the State stands to profit from the impairment. (United States Trust Co. v. New Jersey (1977), 431 U.S. 1, 23, 25, 52 L. Ed. 2d 92,110,112, 97 S. Ct. 1505, 1518, 1520.) The majority points out that no express statutory covenant between the State and the bondholders is involved here, as it was in United States Trust Co. Neither was the contract between the Authority and the bondholders purely private, however. The State gave the Authority power to issue bonds secured by its revenues, and the State created those revenues by giving the Authority power to fix and collect tolls and by exempting the Authority’s property from tax. Moreover, following the Supreme Court’s reasoning, the impairment of this contract should be subjected to the closer scrutiny reserved for public contracts because it is the State, through its units of local government, which stands to profit from the impairment.

In this case, however, it is immaterial how strict or how relaxed a standard of review is applied to the impairment of the bondholders’ contract. As in Allied Structural Steel, there is no showing here that the amendment partially repealing the tax exemption was enacted to deal with a general or pressing social problem. On the contrary, it is clear from the amendment’s legislative history that its sole purpose was to place back on the tax rolls property now leased by the Toll Highway Authority to private entities at tollway oases, thus legislatively overruling Illinois State Toll Highway Com. v. Korzen (1965), 32 Ill. 2d 338, 341, in which this court held that “[t]he public purpose in exempting [the Authority’s] property from taxation would not be fully recognized” unless leasehold interests in tollway oases were included in the exemption. It is evident that this public purpose was to secure the bonds issued by the Authority, since this was the principal purpose to which the Authority’s revenues were pledged by statute. I conclude that for the State to repeal the exemption for the sole purpose of repudiating legislation enacted when the Authority was created and which served as the basis for the issuance of the bonds violates the contracts clause.

Nor does the fact that the challenged amendment involves the State’s taxing power alter my conclusion. The court reasons that statutes granting tax exemptions are to be strictly construed and that, in general, beneficiaries of such exemptions have no legitimate expectation of their continued existence absent an express statutory covenant to the contrary. Although these general principles are correct, they are not helpful in determining the extent of the limitations that the contracts clause places on the State’s power to modify contractual obligations. The bondholders surely had a legitimate expectation that the State would not unnecessarily eliminate a part of the Authority’s revenues, which were granted to it by a statute which also provided that those revenues should serve as sole security for the bonds and would not be diverted to other purposes.

I would therefore affirm the judgment of the appellate court.

MR. JUSTICE RYAN,

also dissenting:

I join with Mr. Justice Underwood in his dissent, and in addition thereto state the following reasons for my disagreement with the majority opinion.

I believe that the amendment to section 22 of the toll highway act, effective October 1, 1973 (Ill. Rev. Stat. 1973, ch. 121, par. 100—22), under which the leasehold interest is sought to be taxed in this case, is unconstitutional as an impairment of the obligation of the State’s contract with the Illinois State Toll Highway Authority and the obligation of the bonds issued by the Authority.

I have no quarrel with the general proposition of law stated by the majority: “As a general rule a taxpayer has no vested right in the continued existence of a taxing statute.” (75 Ill. 2d at 38.) However, this proposition has no application to this case. A simple reading of the cases cited by the majority in support of this general statement of law shows that these cases and this proposition are not relevant to the facts in our case. Both People ex rel. Harding v. Chicago & Northwestern Ry. Co. (1930), 340 Ill. 102, and People ex rel. Campe v. Board of Review (1919), 290 Ill. 467, involved amendments changing the percentage of the value of the property that should be used as the assessed value upon which taxes are computed. Such general statutes do not confer rights upon taxpayers. They are considered to be directions to the assessment and taxing officials. (See Ohio Life Insurance & Trust Co. v. Debolt (1853), 57 U.S. (16 How.) 416, 14 L. Ed. 997, 1005.) As such, they are acts of legislation which the State might modify or. change according to the necessity of public service. The statute involved in our case, however, does not provide for, nor is it a part of, a general scheme of taxation applicable to all taxpayers or all taxpayers of a specified group, but instead is a special law creating the Illinois State Toll Highway Authority and the tax exemption provided in this act applies to the property of no other entity.

This same feature distinguishes our case from those wherein tax-exemption statutes have been termed “bounty statutes.” In East Saginaw Salt Manufacturing Co. v. City of East Saginaw (1872), 80 U.S. (13 Wall.) 373, 20 L. Ed. 611, it was contended that a statute which provided that the property of all corporations formed for the purpose of manufacturing salt shall be exempt from taxation, and should receive from the State a bounty of 10 cents for each bushel of salt manufactured, constituted a contract, the obligation of which an amendatory act impaired by limiting the tax-exemption provision. The court held that the statute did not create a contract between the State and corporations which took advantage of the provisions of the statute, but that it was a bounty which was bestowed by the State upon those who complied with the law to which they were entitled so long as the law remained unrepealed. In Welch u. Cook (1879), 97 U.S. 541, 24 L. Ed. 1112, the Supreme Court again referred to a tax exemption contained in a general law as a bounty of the legislature.

In Piqua Branch of the State Bank of Ohio v. Knoop (1853), 57 U.S. (16 How.) 369, 14 L. Ed. 977, however, the courts dealt with an Ohio statute authorizing the incorporation of banks and not with a general statute relating to taxation. The statute provided that a bank organized under it shall pay to the State 6% of its profits, which sum “shall be in lieu of all taxes to which the company, or the stockholders therein, would otherwise be subject.” (57 U.S. (16 How.), 369, 377, 14 L. Ed. 977, 980.) The plaintiff bank was organized under this act. Thereafter, the Ohio legislature enacted a law entitled “An act to tax banks and bank and other stocks, the same as property is now taxable by the laws of the State.” (57 U.S. (16 How.) 369, 377, 14 L. Ed. 977, 980.) The Ohio Supreme Court had held that the section exempting the bank property from taxation was a law prescribing “a rule of taxation, until changed, and not a contract stipulating against any change: a legislative command and not a legislative compact with these institutions.” (57 U.S. (16 How.) 369, 379, 14 L. Ed. 977, 981.) The Supreme Court, however, stated that in its opinion the Act “does not import to be a legislative command nor a rule of taxation until changed, but a contract stipulating against any change.” 57 U.S. (16 How.) 369, 382-83, 14 L. Ed. 977, 983.

In East Saginaw Salt Manufacturing Co. the court, in distinguishing the general nature of the act it was considering from the special act involved in Piqua, noted that as to corporations formed under the special act in Piqua “the scope of the act takes in the whole period for which the corporation is formed. The language means that, during the existence of any corporation formed under the act, the stipulation or exemption specified in it is to operate.” (80 U.S. (13 Wall.) 373, 378, 20 L. Ed. 611, 614.) This distinction between a general statute containing tax exemptions designed to encourage persons to engage in a certain type of business and a special grant of an exemption to particular taxpayers was again noted by Mr. Justice Holmes in Wisconsin & Michigan Ry. Co. v. Powers (1903), 191 U.S. 379, 48 L. Ed. 229, 24 S. Ct. 107.

The majority opinion in our case holds that the toll highways act in which the exemption is granted “contained no language which would serve to create a contract that the grant of exemption would remain in force.” (75 Ill. 2d at 39.) It is not necessary that an act contain the language similar to that found in the Northwestern University charter: “shall be forever free from taxation for any and all purposes” (People ex rel. County Collector v. Northwestern University (1972), 51 Ill. 2d 131, 132). In Ohio Life Insurance & Trust Co. v. Debolt (1853), 57 U.S. (16 How.) 416, 14 L. Ed. 997, the court held that it must determine from the statute whether the words used are words of contract and what is their true meaning. “[I] n forming its judgment upon this subject, it can make no difference whether the instrument claimed to be a contract is in the form of a law passed by the legislature, or of a covenant or agreement by one of its agents acting under the authority of the State.” (57 U.S. (16 How.) 416, 433, 14 L. Ed. 997, 1004.) In Piqua the special statute, which the court held created a contract with the banks, contained no language assuring a continued, irrevocable exemption similar to that contained in the Northwestern University charter, which the majority opinion in our case thinks is necessary. The statement in the majority opinion concerning the absence of language in the exemption in section 22 indicating a contract “that the grant of exemption would remain in force” (75 Ill. 2d at 39) is reminiscent of the language used by the Ohio Supreme Court in construing the statute involved in Piqua. The Ohio court stated: “It must be admitted the section contains no language importing a surrender of the right to alter the taxation prescribed ***.” (Debolt v. Ohio Life Insurance & Trust Co. (1853), 1 Ohio St. 563, 575.) The Supreme Court in Piqua, however, looked not to the absence of language restricting subsequent legislative modification of the method of taxation, but to the context and purpose of the entire act, and arrived at a conclusion contrary to that of the Ohio court. The language of the act in Piqua simply provided that the banks should pay 6% of their profits, “which sum or amount so set off shall be in lieu of all taxes to which the company, or the stockholders therein, would otherwise be subject.” (57 U.S. (16 How.) 369, 377, 14 L. Ed. 977, 980.) The court held that it would determine from the context in which the language was used whether or not a contract was created which could not be impaired by subsequent legislation.

Applying the distinction drawn by the above decisions of the Supreme Court, I can only conclude that the tax exemption granted by the toll highway act constituted a covenant by the State that the property of the Authority would be exempt from taxation. I note first that the exemption was not a part of a general scheme of taxation and is contained not in a revenue act or a statute applicable to the public in general, but is contained in the toll highway act and relates solely to the property of the Authority. Also, it is not in the nature of a bounty or an exemption designed to encourage persons or corporations to engage in certain types of enterprises. It is, instead, a special grant to one entity alone — the toll highway authority. It is even a more specific grant than was the exemption in Piqua, which was contained in a banking act and was construed to be a grant to any corporation that was organized under the Act. The statute in question in our case is a comprehensive act designed to provide for the construction of a system of modem, safe highways in this State. (Ill. Rev. Stat. 1971, ch. 121, par. 100—1 et seq.) In order to accomplish this end, what is now the Illinois State Toll Highway Authority was created. It was granted the power to. acquire land and to construct toll highways. It was also granted the authority to lease part of its property to others to be used as service stations and restaurants. (Ill. Rev. Stat. 1971, ch. 121, par. 100—11 (e).) For the purpose of financing the construction of the system the Authority was given the power to issue bonds, which it was provided should not be an obligation of the State of fllinois but would be paid solely from the revenue of the Authority. The Act provided that each bond should bear on its face, printed in bold type, the words that the principal and interest of the bond “are payable out of the revenues derived from the operation of the toll highways of the Authority and all other income from whatever source derived.” (Ill. Rev. Stat. 1971, ch. 121, par. 100—17.) Section 22 of the Act provided: “All property belonging to the Authority and the toll highways, shall be exempt from taxation.” (Ill. Rev. Stat. 1971, ch. 121, par. 100—22.) The Act also provided that when the bonds are paid the toll highways shall become a part of the system of State highways of the State of Illinois. (Ill. Rev. Stat. 1971, ch. 121, par. 100—21.) Pursuant to this comprehensive act, the bonds were sold, the land was acquired, the highways were built, certain facilities were leased to others to provide service stations and restaurant facilities, and the revenue received, including that derived from the leases, was used as part of the “all other income from whatever source derived” to pay the principal and interest on the bonds.

I can only view this specific exemption from taxation granted solely to the property of the Authority, contained as it was in a comprehensive statute enacted for the purpose of providing a system of safe and modem highways which would ultimately become property of the State of Illinois, as a covenant by the State that the property of the Authority would not be subject to taxation. The purpose of the exemption was clearly to assure that there would not be diverted, from the purpose of the act, revenue of the Authority “from whatever source derived” which the statute and the bonds themselves provided should be used to pay the principal and interest of the bonds. At the time the bonds were sold, the leasehold interests, because of the exemption, were not taxable. (Illinois State Toll Highway Com. v. Korzen (1965), 32 Ill. 2d 338.) The amendment to section 22 removing this exemption diverts from the purpose of the act a certain amount of revenue that the bondholders could justifiably expect would be used in the payment of the obligations of the Authority which they had purchased. I would hold that the amendment to section 22 violated the covenant between the State and the Authority and impaired the obligation of the bonds that had been issued by the Authority and purchased by the bondholders in reliance upon the tax-exemption status of the leasehold interests.


author: MR. JUSTICE MORAN

text:
    (No. 51179.
    NORTHERN ILLINOIS AUTOMOBILE WRECKERS AND REBUILDERS ASSOCIATION et al., Appellees, v. ALAN J. DIXON, Secretary of State, Appellant.

      Opinion filed Jan. 26, 1979.

    Rehearing denied March 30, 1979.

      CLARK, J., took no part.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel, Patricia Rosen, and Karen Konieczny, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago (George S. Feiwell, Michael A. Braun, Michael J. Kralovec, and Edward M. Genson, of counsel), for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Defendant has brought this direct appeal under Supreme Court Rule 302(b) (58 Ill. 2d R. 302(b)) from an order of the circuit court of Cook County. The order declared the Secretary of State’s Administrative Rule 5—401A unconstitutional and void, and enjoined its enforcement.

Plaintiffs are a trade association composed of business entities which are required to be licensed under section 5—301 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1977, ch. 95½, par. 5—301) and a corporation so licensed. Defendant, the Secretary of State, is empowered under section 2—101 of the Code (Ill. Rev. Stat. 1977, ch. 95½, par. 2—101) to administer chapters 2 through 9 of the Code, and, as administrator, promulgated Rule 5—401A in August 1978. The rule requires those licensed under section 5—301 of the Code, including used parts dealers, scrap processors, and automotive parts recyclers and rebuilders, to maintain records of certain information on the acquisition and disposition of vehicles and parts.

Shortly after the rule was promulgated, plaintiffs brought an action for declaratory judgment and injunctive relief. This appeal followed a judgment for the plaintiffs. At issue here are the questions of (1) whether Rule 5—401A is unconstitutionally vague under the due process clauses of the Illinois Constitution and the fifth and fourteenth amendments to the United States Constitution, and (2) whether defendant exceeded his statutory authority in promulgating the rule.

Rule 5—401A states in pertinent part:

“Each person or firm licensed pursuant to Section 5 — 301 of the Illinois Vehicle Code is required to maintain for a period of three years subsequent to the acquisition, disposal, wrecking, rebuilding or scraping \sic\ of vehicles or parts thereof, a uniform record of such transactions at his principal place of business. ***
1. Upon the Purchase, Receipt or Acquisition of Vehicles, Parts, Bodies or Engines, the following information must be recorded.
A. The name, address, and verification of same, of the person from whom acquired. Verification shall be by Driver’s License, or if none, then State Identification Card, or if none, other reliable identification.
B. The date and type of acquisition (i.e. sale, exchange, etc.)
C. The purchase price and type of payment (check, cash, etc.)
D. A description of the vehicle or part, including:
1. The year, make and model;
2. Engine serial number if applicable;
3. Vehicle serial number if applicable;
4. The year, make, model and manufacturer’s identification number of the vehicle from which the part was removed.
E. Any other identifying marks or numbers.
F. Documentary proof of ownership (e.g. title, notarized bill of sale, salvage certificate or junking title) and appropriate title number.
G. Whether any serial number or other identifying mark of the manufacturer or Secretary of State has been altered, defaced or removed.
2. It shall be the responsibility of every licensee hereunder to inspect every vehicle or part acquired. If there is any evidence that any serial number thereon has been removed, altered, defaced or destroyed, the licensee shall notify the Secretary of State.
3. Upon the sale, exchange or other disposition of vehicles, bodies, chassis, engines or parts, the following information must be recorded:
A. The name, and address of the person to whom sold or transferred;
B. The date and type of transfer; (i.e. sales, exchange, etc.)
C. The sales price and type of payment;
D. A description of the vehicle, body, chassis, engine or part including:
1. The year, make and model;
2. The engine serial number if applicable;
3. The vehicle serial number if applicable;
4. Any other identifying marks or numbers;
E. The title, salvage certificate, or junking title assigned, or other ownership document given.
4. ‘Parts’ shall include vehicle hulks, vehicle frames, and all essential parts and component parts as defined in the Illinois Vehicle Code, such as clips, doors, fenders, differentials, frames, transmissions, etc. ‘Parts’ does not include carburetors, generators, radiators, steering wheels, etc.”

Defendant contends that Rule 5—401A has sufficient certainty to afford plaintiffs due process. We note at the outset that administrative rules and regulations have the force and effect of law, and must be construed under the same standards which govern the construction of statutes. (DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 485; 2 Am. Jur. 2d Administrative Law sec. 298 (1962).) Like a statute, an administrative rule or regulation enjoys a presumption of validity. People ex rel. Colletti v. Pate (1964), 31 Ill. 2d 354, 359.

To comport with due process, the language must be sufficiently certain to apprise those to whom it is directed of the duty imposed. (Stein v. Howlett (1972), 52 Ill. 2d 570, 579-80; Jaffe v. Cruttenden (1952), 412 Ill. 606, 609; People ex rel. Duffy v. Hurley (1949), 402 Ill. 562, 567.) Where the words and phrases have a technical or special meaning commonly understood by those subject to the rule, the certainty requirement is satisfied. (People ex rel. Spitzer v. County of La Salle (1960), 20 Ill. 2d 18, 27; Vallat v. Radium Dial Co. (1935), 360 Ill. 407, 411-12.) To determine whether the language is sufficiently certain, we cannot and need not pass upon all hypothetical situations that may or may not arise. Stein v. Howlett (1972), 52 Ill. 2d 570, 580-81; Wadlington v. Mindes (1970), 45 Ill. 2d 447,458.

Plaintiffs cite the following words and phrases as vague: (1) “other reliable identification” contained in section 1 — A; (2) “from which the part was removed” in section 1 — D; (3) “[a]ny other identifying marks or numbers” in section 1 — E; (4) “the licensee shall notify the Secretary of State” in section 2; (5) “[a]ny other identifying marks or numbers” in section 3 — D(4); and (6) “[p] arts” in section 4. With the aforementioned principles in mind, we have considered plaintiff’s arguments relative to the asserted vagueness of phrases (1) through (5) above, and, without discussing each phrase separately, conclude that plaintiffs have not met their burden of establishing that the language is unconstitutionally vague.

Relative to the word “parts” in phrase (6), plaintiffs argue that they can only guess as to what items are to be included. “Parts,” in section 4 of Rule 5—401A incorporates the statutory definitions of “essential parts” and “component parts.” Section 1—118 of the Code defines “essential parts” as “[a] 11 integral and body parts of a vehicle of a type required to be registered hereunder, the removal, alteration or substitution of which would tend to conceal the identity of the vehicle or substantially alter its appearance, model, type or mode of operation.” (Ill. Rev. Stat. 1977, ch. 95½, par. 1—118.) Section 4—100 defines “component parts” as “[a] ny part of a vehicle, other than a tire, having a manufacturer’s identification number or an identification number issued by the Secretary of State.” (Ill. Rev. Stat. 1977, ch. 95½, par. 4—100.) It is evident that the “parts” covered by these definitions are those important to the identification of a particular vehicle, and not those which are merely incidental to its operability. Such parts presumably are within the special knowledge of those who, like plaintiffs, are in the automotive parts industry. Plaintiffs contend that, under the last sentence of the rule’s section 4, it is unclear what parts are excluded from the record-keeping requirements. It is defendant’s interpretation, however, that the exclusion was meant to encompass all parts other than “essential” and “component” parts. It is a court’s task to construe a statute or rule, if consistent with the legislative intent, in a manner compatible with constitutional limitations. (United States Civil Service Com. v. National Assocation of Letter Carriers (1973), 413 U.S. 548, 571, 37 L. Ed. 2d 796, 812, 93 S. Ct. 2880, 2893.) We conclude, as did the defendant, that “parts,” in section 4 of the rule, is intended to include only “essential” and “component” parts as defined in the Code. The language, in our opinion, is sufficiently clear and comprehensible to those in the trade.

In sum, taking into account the context in which each challenged word and phrase appears, we are of the opinion that the rule sufficiently informs those in plaintiffs’ business of the records which they are required to keep, and that they are not, therefore, denied due process of law.

Defendant contends that he did not exceed his statutory authority in promulgating Rule 5—401 A. Administrative rules and regulations must be authorized by statute. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 551.) Furthermore, a statute may not be altered or added to by the exercise of a power to make rules and regulations thereunder. Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151.

As stated, section 2—101 empowers defendant to administer chapters 2 through 9 of the Code. Section 2—104(a) (Ill. Rev. Stat. 1977, ch. 95½, par. 2-104(a)) also charges defendant with the duty of “observing, administering and enforcing” the same chapters. Section 2—104(b) further states:

“The Secretary may from time to time make, amend, and rescind such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act ***.” (Ill. Rev. Stat. 1977, ch. 95½, par. 2—104(b).)

Rule 5—401A was patterned after section 5—401 of the Code, which sets forth certain record-keeping requirements for persons licensed under section 5—301 “in such form as the Secretary of State may by rule or regulation prescribe” (Ill. Rev. Stat. 1977, ch. 95½, par. 5—401). Plaintiffs argue that this quoted phrase restricts defendant from imposing on licensees record-keeping requirements for any items other than those specifically enumerated in section 5 — 401; that, because some of the items that Rule 5—401A requires licensees to keep records of are not specifically included in section 5—401 of the Code, defendant has exceeded his statutory authority. As an example, plaintiffs point out that section 1—C of the rule requires licensees to record the purchase price and type of payment upon the acquisition of vehicles or parts, while section 5—401(a) of the Code is silent on these points.

The grant of powers to defendant in section 2—104(b) is couched in broad language. In interpreting this language to determine the scope of the grant, it is important to consider the purpose of the legislation. (See Federal Trade Com. v. Mandel Bros. (1959), 359 U.S. 385, 388-89, 3 L. Ed. 2d 893, 896-97, 79 S. Ct. 818, 821-22.) The predecessor of section.5 — 401 of the Code was section 14 of the Uniform Motor Vehicle Anti-Theft Act (Ill. Rev. Stat. 1955, ch. 95½, par. 87), the purpose of which was to facilitate the discovery and prevention of automobile thefts (People v. Allen (1950), 407 Ill. 596, 599, cert, denied (1951), 341 U.S. 922, 95 L. Ed. 1355, 71 S. Ct. 739). This court recognized at an early date the strong public policy in favor of preventing automobile thefts. (People v. Billardello (1925), 319 Ill. 124.) Rule 5—401A is consistent with and furthers the purpose of the statute, and is within the “public interest” as that term is used in section 2—104(b) of the Code. At the time the statute was enacted, the legislature could not realistically foresee and spell out in detail every specific piece of information that would be necessary or helpful to further the purpose of the statute. (See American Trucking Associations v. United States (1953), 344 U.S. 298, 309-10, 97 L. Ed. 337, 355, 73 S. Ct. 307, 314.) Nowhere in section 5 — 401 of the Code is there an indication that the items specifically listed were intended to be exclusive. Subsection (a)(1), for example, requires a record of a description of vehicles and parts acquired by the licensee, “including numbers of or other marks of identification.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 95½, par. 5—401 (a)(1).) Moreover, section 5 — 501(a)(6) of the Code provides that a license may be denied, revoked, or suspended if the licensee has “[f] ailed to file or produce for the Secretary of State any application, report, document or other pertinent books, records, documents, letters, contracts, required to be filed or produced under this Chapter or any rule or regulation made by the Secretary of State pursuant to this Chapter. ” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 95½, par. 5-501 (a)(6).) This provision reveals that the legislature contemplated that defendant may require records of information other than those items specifically enumerated in section 5—401.

Most of the information that Rule 5—401A requires licensees to record is specifically included in section 5—401 of the Code. The remaining informational requirements contained in the rule are merely incidental to or are otherwise in the same category as and similar to the statutory requirements. This is not the case of an administrative rule being in “clear contravention of the spirit and letter of the act” (Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151). We conclude, therefore, that the promulgation of Rule 5—401A was within defendant’s delegated statutory authority.

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

Judgment reversed.

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